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ARBITRATION RULES - UNCITRAL Arbitration Rules

Recommendations to Assist Arbitral Institutions and Other Interested Bodies with Regard to Arbitrations Under the UNCITRAL Arbitration Rules

Introduction

A. Adoption of UNCITRAL Arbitration Rules as Institutional Rules of an Arbitral Body

B. Arbitral Institution or Other Body Acting as Appointing Authority or Providing Administrative Services in Ad Hoc Arbitration under the Uncitral Arbitration Rules

1. Offer of Services
2. Functions as Appointing Authority
3. Administrative Services

Note

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UNCITRAL Arbitration Rules

United Nations (UN)

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ARBITRATION RULES - UNCITRAL Arbitration Rules

Recommendations to Assist Arbitral Institutions and Other Interested Bodies with Regard to Arbitrations Under the UNCITRAL Arbitration Rules

B. Arbitral Institution or Other Body Acting as Appointing Authority or Providing Administrative Services in Ad Hoc Arbitration under the Uncitral Arbitration Rules

1. Offer of Services

13. Ad hoc arbitrations conducted under the UNCITRAL Arbitration Rules may be facilitated by a body acting as appointing authority or providing administrative services of a secretarial, technical nature. These kinds of assistance could be rendered not only by arbitral institutions but also by other bodies, in particular chambers of commerce or trade associations.

14. Such institutions and bodies are invited to consider offering their services in this regard. If they decide to do so, they may wish to make that willingness known to the interested public. It is advisable that they describe in detail the services offered and the relevant administrative procedures.

15. In devising these administrative procedures or rules, the institutions should have due regard to the interests of the parties. Since the parties in these cases have agreed that the arbitration is to be conducted under the UNCITRAL Arbitration Rules, their expectations should not be frustrated by an administrative rule which is in conflict with the UNCITRAL Arbitration Rules. Thus, the considerations and the appeal expressed above in the context of adopting these Rules as institutional rules (see paras. 9-12) apply here with even greater force.

16. The following remarks and suggestions are intended to assist any interested institution in taking the necessary organizational measures and in devising appropriate administrative procedures in conformity with the UNCITRAL Arbitration Rules.

17. It is recommended that the administrative procedures of the institution distinguish clearly between the functions of an appointing authority as envisaged under the UNCITRAL Arbitration Rules and other administrative assistance of a technical, secretarial nature. The institution should declare whether it is offering both or only one of these types of service. When offering both types the institution may declare its willingness to provide only one of these services in a given case, if so requested.

18. The distinction between these two types of services is also of relevance to the question of which party may request these services. On the one hand, an institution may act as appointing authority under the UNCITRAL Arbitration Rules only if it has been so designated by the parties, whether in the arbitral clause or in a separate agreement. An institution should so state in its administrative procedures, possibly with the additional provision (as a rule of interpretation) that it would also act as appointing authority if the parties submit a dispute to it under the UNCITRAL Arbitration Rules without specifically designating it as the appointing authority. On the other hand, administrative services of a technical, secretarial nature might be requested not only by the parties, but also by the arbitral tribunal (cf. art. 15, para. (1) and art. 38, para. (c) of the UNCITRAL Arbitration Rules).

19. In order to assist parties, the institution may wish to set forth in its administrative procedures model arbitration clauses covering the above services. The first part of any such model clause should be identical with the model clause of the UNCITRAL Arbitration Rules: "Any dispute, controversy or claim arising out of or relating to this contract, or the breach, termination or invalidity thereof, shall be settled by arbitration in accordance with the UNCITRAL Arbitration Rules as at present in force."

The agreement as to the services which are requested should follow. For example: "The appointing authority shall be the XYZ-Institution." or: "The XYZ-Institution shall act as appointing authority and provide administrative services in accordance with its administrative procedures for cases under the UNCITRAL Arbitration Rules."

As suggested in the UNCITRAL Model Arbitration Clause, the following note may be added:

Note - Parties may wish to consider adding:

(a) The number of arbitrators shall be... (one or three);

(b) The place of arbitration shall be... (town or country);

(c) The language(s) to be used in the arbitral proceedings shall be...."

20. In view of the considerations and concerns expressed above in paragraphs 12 and 15, if the administrative procedures of the institution are such as to lead to a modification in substance of the UNCITRAL Arbitration Rules, it may be advisable that this modification be reflected in the model clause.

2. Functions as Appointing Authority

21. An institution which is willing to act as appointing authority under the UNCITRAL Arbitration Rules should specify in its administrative procedures the various functions of an appointing authority envisaged by these Rules which it will perform. It might also describe the manner in which it intends to perform these functions.

(a) Appointment of Arbitrators

22. The UNCITRAL Arbitration Rules envisage various possibilities concerning the appointment of an arbitrator by an appointing authority. Under article 6, paragraph 2, the appointing authority may be requested to appoint a sole arbitrator, in accordance with certain procedures and criteria set forth in article 6, paragraphs 3 and 4, Further, it may be requested, under article 7, paragraph 2, to appoint the second of three arbitrators. Finally, it may be called upon to appoint a substitute arbitrator under Articles 11, 12 or 13 (successful challenge and other reasons for replacement).

23. For each of these cases, the institution may indicate details as to how it would select the arbitrator in accordance with the UNCITRAL Arbitration Rules. In particular, it may state whether it maintains a panel or list of arbitrators, from which it would select appropriate candidates, and may provide information on the composition of such panel. It may also specify which person or organ within the institution would in fact make the appointment (e.g. president, director, secretary or a committee).

(b) Decision on Challenge of Arbitrator

24. Under article 10 of the UNCITRAL Arbitration Rules, any arbitrator may be challenged if circumstances exist that give rise to justifiable doubts as to his impartiality or independence. When such a challenge is contested (e.g. if the other party does not agree to the challenge or the challenged arbitrator does not withdraw), the decision on the challenge is to be made by the appointing authority according to article 12, paragraph 1. If the appointing authority sustains the challenge, it may also be called upon to appoint the substitute arbitrator.

25. The institution may indicate details as to how it would make the decision on such a challenge in accordance with the UNCITRAL Arbitration Rules. In particular, it may state which person or organ within the institution would make the decision. The institution may also wish to identify any code of ethics or other written principles which it would apply in ascertaining the independence and impartiality of arbitrators.

(c) Replacement of Arbitrator

26. In the event that an arbitrator fails to act or in the event of the de jure or de facto impossibility of his performing his functions, the appointing authority may, under article 13, paragraph 2, be called upon to decide on whether such a reason for replacement exists, and it may be involved in appointing a substitute arbitrator. What has been said above in regard to the challenge of an arbitrator applies also to such cases of replacement of an arbitrator.

27. The situation is different with regard to those cases of replacement covered by paragraph 1 of article 13. In the event of the death or resignation of an arbitrator during the course of the arbitral proceedings, the only task which may be entrusted to an appointing authority is to appoint a substitute arbitrator.

(d) Assistance in Fixing Fees of Arbitrators

28. Under the UNCITRAL Arbitration Rules, the arbitral tribunal fixes its fees, which shall be reasonable in amount, taking into account the amount in dispute, the complexity of the subject-matter, the time spent by the arbitrators and any other relevant circumstances of the case. In this task, the arbitral tribunal may be assisted by an appointing authority in three different ways:

(i) If the appointing authority has issued a schedule of fees for arbitrators in international cases which it administers, the arbitral tribunal in fixing its fees shall take that schedule of fees into account to the extent that it considers appropriate in the circumstances of the case (art. 39, para. 2);

(ii) In the absence of such a schedule of fees, the appointing authority may provide, upon a party's request, a statement setting forth the basis for establishing fees which is customarily followed in international cases in which the authority appoints arbitrators (art. 39, para. 3);

(iii) In cases referred to under (i) and (ii), when a party so requests and the appointing authority consents, the arbitral tribunal shall fix its fees only after consultation with the appointing authority, which may make any comment it deems appropriate to the arbitral tribunal concerning the fees (art. 39, para. 4).

29. An institution willing to act as appointing authority may indicate, in its administrative procedures, any relevant details in respect of these three possible ways of assistance in fixing fees. In particular, it may state whether it has issued a schedule of fees as envisaged under (i). The institution might also declare its willingness to perform the function envisaged under (ii), if it has not issued a fee schedule, and to perform the function under (iii).

(e) Advisory Comments Regarding Deposits

30. Under article 41, paragraph 3, of the UNCITRAL Arbitration Rules, the arbitral tribunal shall fix the amounts of any initial or supplementary deposits only after consultation with the appointing authority, which may make any pertinent comment it deems appropriate, if a party so requests and the appointing authority consents to perform this function. The institution may wish to indicate in its administrative procedures its general willingness to do so.

31. It should be noted that, under the UNCITRAL Arbitration Rules, this kind of advice is the only task relating to deposits which an appointing authority may be requested to fulfil. Thus, if an institution offers to perform any other function (e.g., to hold deposits, to render an accounting thereof), it should be pointed out that this is a modification of article 41 of the UNCITRAL Arbitration Rules.

3. Administrative Services

32. An institution which is prepared to provide administrative services of a technical, secretarial nature may describe in its administrative procedures the various services offered. Such services may be rendered upon request of the parties or the arbitral tribunal.

33. In describing the various services, the institution should specify those services which would not be covered by its general administrative fee and which, therefore, would be billed separately (e.g., interpretation services). The institution may also wish to indicate which of the services it can provide itself, with its own facilities, and which it might merely arrange to be rendered by others.

34. The following list of possible administrative services, which is not intended to be exhaustive, may assist institutions in considering and publicizing which services it may offer:

(a) Forwarding of written communications of a party or the arbitrators;

(b) Assisting the arbitral tribunal in establishing the date, time and place of hearings, and giving advance notice to the parties (cf. art. 25, para 1 of UNCITRAL Arbitration Rules);

(c) Providing, or arranging for, meeting rooms for hearings or deliberations of the arbitral tribunal;

(d) Arranging for stenographic transcripts of hearings;

(e) Assisting in filing or registering arbitral awards in those countries where such filing or registration is required by law;

(f) Providing secretarial or clerical assistance in other respects.

4. Administrative Fee Schedule

35. The institution may wish to state the fees which it charges for its services. It might reproduce its administrative fee schedule or, in the absence thereof, indicate the basis for calculating its administrative fees.

36. In view of the two possible categories of services an institution may offer, it is recommended that the fee for each category be stated separately. Thus, if an institution offers both categories of service, it may indicate its fees for the following three functions:

(a) Acting as appointing authority and providing administrative services;

(b) Acting as appointing authority only;

(c) Providing administrative services without acting as appointing authority.

(In addition to the information and suggestions set forth herein, assistance may be obtained from the secretariat of the Commission (International Trade Law Branch, Office of Legal Affairs, United Nations, Vienna International Centre, P.O. Box 500, A-1400 Vienna, Austria). The secretariat could, for example, provide any interested institution with copies of the institutional rules or administrative procedures of a given other institution. It may also, if so requested, assist in the drafting of an administrative provision or make suggestions in this regard.)


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