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The Influence of the New York
Convention on the UNCITRAL
Model Law on International
Commercial Arbitration
Renaud Sorieul*

This presentation is intended to address specifically one aspect of the

multifaceted influence of the New York Convention on the UNCITRAL
Model Law on International Commercial Arbitration, by focusing on those
few instances where the Model Law directly quotes from the Convention,
namely Articles 35 and 36 on the recognition and enforcement of awards,
Article 34 on setting aside of awards, and newly adopted Articles 17H and
171 on the recognition and enforcement of interim measures. Before
getting into that, I hope I shall be forgiven for starting with a slightly
broader perspective.
Indeed, for a staff member of the department in the United Nations
Secretariat involved in drafting rules of uniform legislation in the context
of UNCITRAL, discussing the Model Law in connection with the New York
Convention is a delicate exercise in scoping. First, it is tempting (as we do on
a daily basis) to treat the New York Convention as a UNCITRAL instrument.
There are obvious reminders that the 1958 New York Convention pre-dates
the creation of UNCITRAL in 1966. However, the fact is, also, that there exists
a very strong continuity in the inspiration and purpose of the discussions
that resulted in the adoption of the Convention in 1958 and the definition of
UNCITRAL's mandate in 1966. With respect to arbitration, UNCITRAL was
clearly put in place to continue and amplify the work of the 1958 Diplomatic
Conference and to answer certain questions left open or created by the
 DISPUTE RESOLUTION INTERNATIONAL Vol 2 No 1 May 2008

New York Convention.1 It is no surprise that, at its first session, UNCITRAL

'decided... to request the Secretary-General, in consultation with the organs
and organizations concerned, to prepare a preliminary study of steps that
might be taken with a view to promoting the unification and harmonization
of law in th [e] field [of commercial arbitration], having particularly in mind
the desirability of avoiding divergences among the different instruments on
this subject'. 2 Since then, UNCITRAL, as the core legal body in the United
Nations System in the field of international trade law, has come to be regarded
as the custodian of the New York Convention. A recent illustration of that
fact is the adoption in 2006 of a UNCITRAL Recommendation Regarding
the Interpretation of Article II, paragraph 2, and Article VII, paragraph 1,
of the Convention.3 That Recommendation was subsequently endorsed in a
4
resolution by the General Assembly.
As is only too clear, the New York Convention does not deal with either the
substantive or the procedural law of arbitration. To that extent, the entire
Model Law (although adopted in 1985) may be regarded as a by-product of the
1958 Diplomatic Conference. The Model Law was revised in 2006, mainly to
modernise the provisions ofArticle 7 on the form of the arbitration agreement
and Article 17 on interim measures. 5 It is still too early to assess the impact of
those 2006 decisions on the operation of the Model Law and the interpretation
of the New York Convention. However, based on recent deliberations in the
Working Group and UNCITRAL itself, it is clear that the currently preferred
strategy for modernising and harmonising the interpretation of the New York
Convention relies on adopting additional or revised Model Law provisions,
accompanied by the proper interpretative language referring to domestic

* Principal Officer, Head, Legislative Branch, International Trade Law Division, United
Nations Office of Legal Affairs. Renaud Sorieul can be contacted at renaud.sorieul@
uncitral.org. The view expressed in the presentation are those of the author and do not
necessarily reflect the views of the United Nations.
1 Report of the Committee on Other Measures: 'The Conference.... Expresses the fol-
lowing views with respect to the principal matters dealt with in the note of the Secretary-
General:... 5. It considers that greater uniformity of national laws on arbitration would
further the effectiveness of arbitration in the settlement of private law disputes,... and
suggests that... appropriate attention be given to defining suitable subject matter for
model arbitration statutes and other appropriate measures for encouraging the devel-
opment of such legislation' (E/CONF 26/L 60, 6June 1958).
2 Official Records of the General Assembly, Twenty-third Session, Supplement No 16 (A/7216),
para 48(32).
3 Official Records of the GeneralAssembly, Sixty-first Session, Supplement No 17 (A/61/17),
Annex II.
4 Resolution 61/33 adopted on 4 December 2006 (A/RES/61/33). Those two texts are
discussed separately in a presentation by Mr Sekolec, Secretary of UNCITRAL, at this
Conference.
5 Official Records of the GeneralAssembly, Sixty first
Session, Supplement No 17 (A/61 /17), Annex 1.
INFLUENCE OF NY CONVENTION OF UNCITRAL MODEL LAW

legislation through Article VII of the Convention.

Speaking of 'influence' of the New York Convention on the Model Law is
probably an understatement to describe a situation where the Convention
determines and shapes the need for arbitration legislation, of which the
Model Law is a possible element. From that perspective, the Convention
had an agenda-setting role for the drafters of the Model Law, together with
a scope-setting and structuring effect on the Model Law itself.
Had more time been available for a presentation of the influence of the
New York Convention on the Model Law, it would have been interesting
to start with a fresh look at the relationship between the two instruments,
based on the finding that the New York Convention does not have to be
described always according to conventional wisdom, as the monument or the
keystone of international arbitration it unquestionably is. More innovative
metaphors about the Convention will probably be voiced as we celebrate the
50th anniversary throughout the world in 2008. However, this festive spirit
should not prevent anyone from seeing different sides of the Convention,
including its silence, its occasional imprecision, its openness to divergent
interpretations, the vagueness of some of the concepts on which it is based,
or simply the expression of some limitations that prevailed in the 1950s,
such as the reluctance to address the relationship between the sphere of
arbitration and the sphere of state court jurisdiction and, more generally,
the impossibility of attempting any harmonisation of the law governing
procedural issues.
Whether or not the unwillingness to deal with procedural law was the
decisive element, at this point, one may pause and admire the vision displayed
by the drafters of the Convention, who not only created the most achieved
enforcement regime for arbitral awards but at the same time took the risk
of creating an imbalance between that strong enforcement regime and the
possible lack or inadequacy of surrounding arbitration law, the risk that
the keystone might eventually hang in the air, without a proper building to
support it.6 The provision that reflects best that vision, the corresponding
risk and the underlying confidence in the ability of the legal environment of
the Convention to adapt favourably is probably Article VII, the gem buried
in the Convention and the expression of its true genius, according to which
more favourable legislation prevails over the Convention itself.
Right from the beginning, the Model Law was intended to provide at least

6 The possible absence of suitable arbitration legislation may have been unlikely at a time
when international commercial arbitration and the associated legal mechanisms were
at play among a relatively small number of countries that shared a high degree of legal
development. It is less improbable at a time when the Convention has reached quasi-
universal coverage.
 DISPUTE RESOLUTION INTERNATIONAL Vol 2 No 1 May 2008

some of the substantive law necessary for the New York Convention to feed
and sustain itself. In short, it offered a uniform international understanding
of the smallest common denominator necessary to allow the Convention to
function smoothly. For the drafters of the Model Law, the Convention was
not only a constant source of inspiration (I) 7 but also a scope-setting and
structuring model, with some provisions in the Model Law referring directly
to the New York Convention (II).

The New York Convention as a constant source of inspiration for

the drafters of the Model Law8
In addition to the difficulties arising from the fact that the Convention remains
silent on issues of substantive law governing arbitration,9 another range of
potential problems may stem from the vagueness of the terminology used
by the Convention. A more positive characterisation of that terminology
should emphasise that a clear choice was made by the drafters of the New
York Convention between flexibility and predictability (a tension between
those two poles being a common feature of all 'uniform' legal standards).
Such flexible terms may be extremely helpful to establish the discretion
of enforcing judges but it is premised on the assumption (the hope?) that
judges share the pro-enforcement bias reflected in the Convention. Whether
that assumption isjustified or not, the lack of precision in the formulation of
some provisions of the Convention may result in considerable disparities in
their interpretation.

7 Some developments in that section were initiated at a conference organised by the

German Institution of Arbitration (DIS) in Dresden on 19 April 2007. See R Sorieul,
'Possible Work to Increase the Enforceability of Arbitral Awards in the European Union:
Reflexions from a Global Perspective' in G Wagner and P Schlosser, eds, SchriftenTeihe der
Deutsche Ilnstitutionflit Schiedsgerichtbarkeit-Band 22 -Die Vollst eckung von Schiedsspriichen
(Cologne: Carl Heimanns Verlag, 2007).
8 General reference may be had to the proceedings of a conference convened by the UN-
CITRAL secretariat on 10June 1998 to celebrate the 40th anniversary of the New York
Convention. Comments made at that conference deal mainly with the vacuum left by
the Convention in respect of procedure and its deference to domestic legislation. The
proceedings of that conference are contained in 'Enforcing Arbitration Awards under
the New York Convention - Experience and Prospects' (New York: United Nations Pub-
lication, 1999), Sales No E 99 V 2.
9 Concerns regarding the difficulties left open by the New York Convention's deference
to domestic laws are summarised in the statement by Mr Fali S Nariman, discussing the
Convention's contribution to the globalisation of international commercial arbitration
at the above-mentioned 40th anniversary conference: 'After the Conference in New
York ended in June 1958, a brief Mission Statement was issued as to what the draft provi-
sions hoped to achieve - with befitting humility, it said: "A worldwide simple enforce-
ment of arbitral awards. That's all. And the simplest way for recognition and enforce-
ment of foreign awards was working through, and taking the assistance of, the national
courts in Contracting States"'. 'Experience and Prospects' (see fn 8 above), at 11.
INFLUENCE OF NY CONVENTION OF UNCITRAL MODEL LAW

A possible gap-fillingrolefor the Model Law

A limited attempt to clarify certain concepts: The Model Law is not univocal
regarding the desirability and feasibility of clarifying the conceptual framework
established by the New York Convention. For example, the Model Law is not
clearer than the Convention in respect of a definition of 'Arbitration' or
'Award ' . However, with respect to Article 13, which allows states to make a
reservation to 'apply the Convention only to differences arising out of legal
relationships, whether contractual or not, which are considered as commercial
under the national law of the State making such declaration', the Model
Law promotes a common understanding of 'commercial relationships'. 2
As to the focus of the Model Law on 'international' arbitration, it should
be viewed in the light of the Convention, which is limited in scope to the
recognition and enforcement of 'foreign awards' as opposed to 'international
awards'. 3 A number of provisions of the Model Law try to compensate for
the consequences of that limitation under the Convention by offering a very

10 The review of the travaux peparatoiesof the Model Law in this presentation is based on
the 'Analytical Commentary on Draft Text of a Model Law on International Commer-
cial Arbitration' prepared by the Secretariat to facilitate the final review and adoption of
the Model Law by UNCITRAL (A/CN.9/264), Article 1, comment 13.
11 The Working Group that prepared the Model Law was agreed that it was desirable for
the Model Law to define the term 'award' and noted that such definition had important
implications for a number of provisions of the Model Law, especially Articles 34 and 16.
After commencing consideration of a proposed definition, the Working Group decided,
for lack of time, not to include a definition in the Model Law to be adopted by it and
to invite the Commission to consider the matter (A/CN.9/246, paras 129, 192-4). The
Commission did not agree on such a definition. For example, the question of whether
interim measures ordered by an arbitral tribunal qualify for recognition and enforce-
ment as 'awards' under the New York Convention was left entirely open by the 1985
version of the Model Law. The issue was addressed by Mr V Veeder at the above-men-
tioned Conference (see 'Experience and Prospects', suprafn 8, at 21). UNCITRAL has
now reached agreement on a regime replacing Article 17 of the 1985 text of the Model
Law by a collection of provisions on interim measures. These new provisions offer a
good source of interpretation should a question be raised regarding the enforceability
of provisional measures under the New York Convention.
12 See A/CN.9/264, Article 1, comments 16-21. The footnote provides that '[t]he term
"commercial" should be given a wide interpretation so as to cover matters arising from
all relationships of a commercial nature, whether contractual or not. Relationships of
a commercial nature include, but are not limited to, the following transactions: any
trade transaction for the supply or exchange of goods or services; distribution agree-
ment; commercial representation or agency; factoring; leasing; construction of works;
consulting; engineering; licensing; investment; financing; banking; insurance; exploita-
tion agreement or concession; joint venture and other forms of industrial or business
co-operation; carriage of goods or passengers by air, sea, rail or road'.
13 An analysis of the original draft of the New York Convention prepared by the Inter-
national Chamber of Commerce (ICC), which proposed 'international' awards as the
main scoping concept is provided by Mr Pierre Tercier, President of the ICC Interna-
tional Court of Arbitration, at this Conference.
 DISPUTE RESOLUTION INTERNATIONAL Vol 2 No 1 May 2008

broad test of internationality under Article 1 and establishing a legal regime

that provides equal treatment to foreign and domestic 'international awards'. 14
The Model Law may also be seen as facilitating the operation of Article III
of the Convention, which establishes a rule of substantial equivalence in the
treatment of foreign and domestic awards.

A generalframework for addressing relationships between the sphere of arbitration

and the sphere of state courts or other authorities: The definitions of 'arbitral
tribunal' and 'court' in the Model Law may be viewed from the perspective
of clarification in terminology, since a 'court' under the Model Law would
clearly include any 'competent authority' in the NewYork Convention.1" More
broadly, the entire Model Law constitutes an attempt to provide guidance
regarding the relationship between the sphere of arbitration and the sphere
of state courts intervention (either in support of arbitration (juge d'appui')
or at the level of enforcement). Those relationships are addressed in Articles
3, 5, 6, 8, 9, 11, 13, 14, 16, 17C, 17H, 171, 17J, 27, 34, 35 and 36. The sheer
number of such references evidences the willingness of the drafters of the
Model Law to fill in at least some of the gaps left open by the New York
Convention in that respect.

A few areas of uncertainty left open by both the Convention and the Model Law
Arbitrability of the dispute The Model Law provisions on the arbitration
agreement do not retain the requirement, expressed in Article 11(1) of
the 1958 New York Convention, that the dispute concern 'a subject-matter
capable of settlement by arbitration'. However, this does not mean that the
Model Law would give full effect to any arbitration agreement irrespective of
whether the subject matter is arbitrable. The Working Group, when discussing
pertinent proposals, recognised the importance of the requirement of
arbitrability but saw no need for an express provision. It was noted, for
example, that an arbitration agreement covering a non-arbitrable subject
matter would normally, or at least in some jurisdictions, be regarded as null
and void and that the issue of non-arbitrability was adequately addressed in
Articles 34 and 36.16 No attempt was made either in the Convention or the
Model Law to suggest a common understanding of what makes a dispute
arbitrable. Such deference to domestic law was prudent when drafting an
instrument for worldwide use in 1958 and the authors of the Model Law
had reasons to find that the issue did not easily lend itself to harmonisation
in 1985. The question may be raised, however, whether further clarification

14 See A/CN.9/264, Article 1, comments 22-34.

15 Ibid, Article 2, comment 2.
16 A/CN.9/264, Article 7, comment 5.
INFLUENCE OF NY CONVENTION OF UNCITRAL MODEL LAW

may not be reachable. The issue is currently on the work programme of

17
UNCITRAL.
ProcedureAs noted by Professor Pieter Sanders, former delegate at the 1958
Conference, in respect of procedure:
'the Convention only contains the requirement that the award and
arbitration agreement shall be supplied to the court (Article IV) and
that no more onerous conditions or higher fees should be imposed than
when enforcement of a domestic award is sought (Article III). For the
rest, the procedure is left to national arbitration law. There does not
exist a centraljurisdiction for the enforcement of New York Convention
awards as in recent years has been suggested by several authors. At the
Conference of 1958 this idea was not even discussed'.18
UNCITRAL could probably go further to fill that gap.1 9
Composition of the tribunal 'in accordance with the agreement of the parties' The
provisions of Article Vi (d) raise issues in a variety of situations where the
composition of the arbitral tribunal varies in the course of the proceedings.
The issue of 'truncated tribunals', while not solved in the Model Law, is
currently being discussed by the UNCITRAL Working Group on Arbitration
and Conciliation in the context of a revision of the 1976 UNCITRAL
20
Arbitration Rules.

17 At its 39th session, in 2006, UNCITRAL 'agreed that the issue of arbitrability was a topic
that the Working Group [on arbitration and Conciliation] should also consider' (Official
Records of the GeneralAssemnbly, Sixty first Session, Supplement No 17 (A/61/17), para 187). 'It
was said that it would be for the Working Group to consider whether arbitrable matters
could be defined in a generic manner, possibly with an illustrative list of such matters,
or whether the legislative provision to be prepared in respect of arbitrability should
identify the topics that were not arbitrable. ... It was cautioned, however, that the topic of
arbitrability was a matter raising questions of public policy, which was notoriously difficult
to define in a uniform manner, and that providing a pre-defined list of arbitrable matters
could unnecessarily restrict a State's ability to meet certain public policy concerns that
were likely to evolve over time' (ibid, para 185).
18 'Experience and Prospects' (see suprafn 8), at 4. At the same Conference, Mr Robert
Briner, as Chairman of the International Court of Arbitration of the International
Chamber of Commerce, discussing the philosophy and objectives of the Convention,
also held that: 'One main shortcoming of the Convention is the obvious lack of an ef-
ficient, universal enforcement procedure' (ibid, 9).
19 Among his various proposals at the 40th Anniversary Conference, Profesor AlbertJan
Van Den Berg recommends: '... draft a Model Law on implementing the Convention
with respect to the procedure for enforcement of Convention awards...' (ibid, 44).
20 Further information on the revision of the UNCITRAL Arbitration Rules currently un-
derway is to be found in documents A/CN./614 and 619, and in documents A/CN.9/
WG.II/WP. 143, 143/Add 1,145 and 145/Add 1. These materials are available on the
UNCITRAL website (see suprafn 3).
 DISPUTE RESOLUTION INTERNATIONAL Vol 2 No 1 May 2008

Direct structuring effect of the Convention on the Model Law

A number of provisions in the Model Law reproduce or paraphrase language

contained in the Convention. However, differences in the legal nature of
the two instruments entail differences in the meaning of provisions that may
be worded quite similarly. In copying or paraphrasing the Convention, the
Model Law may produce a variety of results.

Copying or paraphrasingthe Convention in an area covered by the Convention

Recognition and enforcement of awards irrespective of their place of origin21: Classic
examples of provisions where the Model Law mirrors the Convention are
Articles 35 and 36. However, they provide for the recognition and enforcement
of both domestic and foreign awards. They are premised on the policy that the
Model Law should treat those two categories of awards in a uniform manner,
and provide for their recognition and enforcement irrespective of their place
of origin (and in full harmony with the New York Convention).
It was thought by the authors of the Model Law that, while foreign awards
are dealt with by the Convention, the Model Law would be incomplete if it
did not offer an equally liberal set of rules to cover awards not covered by any
multilateral or bilateral treaty. The Model Law invites drawing a line between
'international' and 'non-international' (ie, purely domestic) awards instead
of distinguishing on territorial grounds between foreign and domestic awards,
and thus aims at reducing the relevance of the place of arbitration.
In a slight variation from the wording of Article III of the Convention,
Article 35 (1) clarifies the distinction between recognition and enforcement
in the context of both the Model Law and the New York Convention. It
reflects the idea that recognition not only constitutes a necessary condition
for enforcement but also plays a role as a stand-alone mechanism, eg, where
an award is relied upon in other proceedings. Article 35(2) is modelled on
Article IV of the Convention and does not lay down the procedure but merely
the conditions for recognition and enforcement.
It is remarkable that, according to the footnote accompanying Article
35(2), these conditions are intended to set maximum standards and a
state may retain 'even less onerous conditions'. The Model Law thus
replicates a policy initiated by the New York Convention in Article VII by
opening a window to reserve the possibility of a further step being taken by
legislators towards fulfilling the pro-enforcement bias that is probably the
main characteristic of the Convention. While it establishes a mechanism
comparable to that of Article VII of the Convention, the Model Law stops
short of using Article VII itself to its full potential, as the Model Law could

21 See A/CN.9/264, Article 35, comments 1-6; Article 36, comments 1-5.
INFLUENCE OF NY CONVENTION OF UNCITRAL MODEL LAW

have done, for example, by establishing more restrictive grounds for setting
aside of an award under Article 34.
Article 36(1) adopts almost literally the well-known grounds set forth in
Article V of the 1958 New York Convention and declares them as applicable to
refusal of recognition or enforcement of all awards, irrespective of where they
were made. As regards foreign awards, full harmony with Article V is obviously
desirable. Article 36 may provide sufficient safeguards to the enforcing state
to make it unnecessary to restrict recognition and enforcement by requiring
reciprocity. Nevertheless, the Model Law does not preclude a state from
adopting a mechanism of reciprocity, in which case the basis or connecting
factor and the technique used should be specified in the national enactment.
The list of reasons was also thought to be appropriate for domestic awards,
although its correspondence with the grounds for setting aside entails the
potential of what has been referred to as undesirable 'double control', ie,
two occasions forjudicial review on the same grounds. In view of the different
purposes and effects of setting aside and of invoking grounds for refusal
of recognition or enforcement, a party should be free to avail itself of the
alternative system of defences (as such recognised by the NewYork Convention)
also in those cases where recognition or enforcement happens to be sought
in the state where the arbitration took place. As regards the potential risk of
double procedures on the same grounds, it is met by paragraph (2).
The fact that the grounds listed in paragraph (1) are applicable to foreign
as well as domestic awards must be taken into account when interpreting
the text, which is in large measure copied from an Article applicable only to
foreign awards (Article V of the Convention). For example, the references to
'the law of the country where the award was made' (sub-paragraph (a) (1))
or 'the law of the country where the arbitration took place' (sub-paragraph
(a) (iv)) or to 'a court of the country in which, or under the law of which,
that award was made' (sub-paragraph (a) (v)) may lead to either a foreign
law, which may or may not have been modelled on the Model Law, or the
law of 'this State'. In the latter case, ie, a domestic setting, account should
be taken of the kind of considerations mentioned in respect of the grounds
for setting aside, for example, the limiting effect of an implied waiver or
submission (Articles 4 and 16(2)) upon the reasons set forth in paragraph
(1) (a) (i) and (iv). Paragraph (2) is modelled on Article VI of the Convention.
In line with the wider scope of the Model Law, it covers not only foreign but
also domestic awards rendered in international commercial arbitration. Thus,
it can be used to avoid concurrent judicial review of the same grounds and
possibly conflicting decisions, where this risk is not already excluded by the
fact that the same court is seized with the application for setting aside and
the other party's application for enforcement.
 DISPUTE RESOLUTION INTERNATIONAL Vol 2 No 1 May 2008

The issue of substantive claims and requestsfor interim measures being brought before a
state court Article 8 of the Model Law is closely modelled on Article 11(3) of the
New York Convention, with two useful elements added. Due to the nature of
the Model Law, Article 8(1) of 'this Law' is addressed to all courts of State X; it
is not limited to agreements providing for arbitration in State X and, thus, wide
acceptance of the Model Lawwould contribute to the universal recognition and
effect of international commercial arbitration agreements. As under the New
York Convention, the court would refer the parties to arbitration or decline
itsjurisdiction, only upon request by a party and, thus, not on its own motion.
A time element has been added that the request be made at the latest with or
in the first statement on the substance of the dispute.
Another addition to the original text in the New York Convention is the
rule in paragraph (2), which confirms that paragraph (1) applies irrespective
of whether arbitral proceedings have already commenced. It empowers an
arbitral tribunal to continue the arbitral proceedings while the issue of its
jurisdiction is pending with a court. The purpose of giving such discretion
to the arbitral tribunal is to reduce the risk and effect of dilatory tactics of
any party reneging on their commitment to arbitration.

Copy or paraphrasingof the Convention in an area not dealt with by the Convention
Setting aside of the award22: Article 34 is one of the many provisions in the Model
Law that delineate the scope of court intervention. It is needed to put an end to
the multiplicity of actions or remedies possibly available to a party for attacking
the award, sometimes over a long period of time. While Article 34 provides
only one means of recourse before a state court, available during a fairly short
period of time, it does not regulate the procedure, particularly as to whether
a decision by the court is appealable. As to the reasons for setting aside the
award, paragraph (2) sets forth essentially the same reasons as those on which
recognition or enforcement may be refused under Article 36(1) or Article V
of the 1958 New York Convention. It even uses, with few exceptions, the same
wording, for the sake of harmony in the interpretation. Conformity with the
Convention was considered desirable in view of the policy of the Model Law to
reduce the impact of the place of arbitration. It recognises the fact that both
provisions with their different purposes (in one case reasons for setting aside
and in the other case grounds for refusing recognition or enforcement) form
part of the alternative defence system which provides a party with the option
of taking the initiative and attacking the award or invoking the grounds when
recognition or enforcement is sought by another party. It also recognises the
fact that these provisions do not operate in isolation.

22 Ibid, Article 34, see comments 1-14.

INFLUENCE OF NY CONVENTION OF UNCITRAL MODEL LAW

While the grounds listed in paragraph (2) are essentially those of Article V
of the Convention, they are used for another purpose, which leads to some
differences. For example, the application of sub-paragraphs (a) (1) and (iv),
possibly also (iii), may be limited by virtue of an implied waiver or submission,
under Articles 423 and 16.24 Sub-paragraph (a) (iv) expresses the priority
of the mandatory provisions of the Model Law over any agreement of the
parties, which is different from Article 36 (1) (a) (iv), at least according to the
predominant interpretation of the corresponding provision in the New York
Convention (Article V(l) (d)). The fact that the composition of the arbitral
tribunal and the arbitral procedure are, thus, to be judged by the mandatory
provisions of the Model Law entails, for example, that this sub-paragraph
(a) (iv) covers to a large extent also the grounds of sub-paragraph (a) (ii),
copied from the New York Convention, which comprise cases of violations
of Articles 18 (equal treatment of the parties and full opportunity to present
their case), 24(2) (advance notice of hearings) and 24(3) (disclosure to all
parties of all information on which the arbitral tribunal may rely).
Yet another difference follows from the different effect of setting aside
as compared to refusing recognition or enforcement. Under sub-paragraph
(b) (i), an award would be set aside if the court finds that the subject matter
of the dispute is not capable of settlement by arbitration 'under the law of
this State'. This reason is certainly appropriate for refusing recognition or
enforcement in a given state, which often regards it as part of its public policy
and may reduce its impact by protecting only its ordrepublicinternational,ie,
its public policy concerning international cases. However, this same reason
used for setting aside gains a different dimension by virtue of the global effect
of setting aside (Article V(l) (e) of the New York Convention).2j

23 Ibid, Article 4, see comment 6.

24 Ibid, Article 16, see comments 8-9.
25 As was suggested in the Working Group that prepared the Model Law: 'such global effect
should obtain only from a finding that the subject-matter of the dispute was not capable of
settlement by arbitration under the law applicable to that issue which was not necessarily
the law of the State of the setting aside proceedings. It was, therefore, suggested to delete
the provision of paragraph (2) (b) (1). The result of that deletion, which received consid-
erable support, would be to limit the court control under Article 34 to those cases where
non-arbitrability of a certain subject-matter formed part of the public policy of that State
(para (2) (b) (il)) or where the court regarded arbitrability as an element of the validity of
an arbitration agreement (para (2) (a) (i)), although some proponents of that suggestion
sought the more far-reaching result of excluding non-arbitrability as a reason for setting
aside. Another suggestion was to delete, in para (2) (b) (i), merely the reference to "the law
of this State" and, thus, to leave open the question as to which was the law applicable to ar-
bitrability. The Working Group, in discussing those suggestions, was agreed that the issues
raised were of great practical importance and, in view of their complex nature, required
further study. The Working Group, after deliberation, decided to retain, for the time be-
ing, the provision of paragraph (2) (b) (i) in its current form so as to invite the Commission
to reconsider the matter and to decide, in the light of comments by Governments and
organizations, on whether the present wording was appropriate or whether the provision
should be modified or deleted' (report of the seventh session, A/CN.9/246, paras 136-7).
 DISPUTE RESOLUTION INTERNATIONAL Vol 2 No 1 May 2008

Recent efforts to solve an old issue: the enforceability of interim measures orderedby the
arbitraltribunal:As noted by Mr Veeder in 1998, 'An award is enforceable at law
by a State court by reference to its national law or as a foreign award under the
New York Convention. Such awards are blessed; but for too long, there have
been difficulties enforcing an arbitrator's order for interim measures, both
abroad and domestically' .26 After years of occasionally painful discussions,
UNCITRAL has now reached agreement on a regime replacing Article 17
of the Model Law in its 1985 formulation by a collection of provisions on
interim measures. 27 Articles 17(H) and 17(I) now offer a recognition and
enforcement mechanism derived from Articles 35 and 36.
The question whether the enforcement regime for arbitral awards
should be regarded as useful precedent in establishing a new enforcement
regime for interim measures was debated by the Working Group. It was
recognised that the form in which the interim measure of protection
was issued 'should not influence the decision whether Articles 35 and 36
were a suitable basis for a regime of enforcement'. 2' As to the substance
of the rules contained in Article 36 and their suitability for interim
measures, the view was expressed that a regime based on Article 36 might
'give scope for delay such as when the party raised objections that the
arbitration agreement was not valid, that proper notice was not given of
the appointment of an arbitrator or of the arbitral proceedings or that
the composition of the arbitral tribunal or the arbitral procedure was not
in accordance with the agreement of the parties or the law of the country
where the arbitration took place (Art 36(1) (a) (i), (ii) or (iv) of the Model
Law) '.29 After discussion, the Working Group decided that the provision
should reflect the principle 'that the legal framework for enforcement of
interim measures should be similar to that existing for the enforcement of
arbitral awards under Articles 35 and 36 of the Model Law, in particular,
with some specific changes needed to adapt these grounds to interim
measures'.30 In the end, although the view was expressed that combining
'provisions based on the New York Convention and relating to arbitral
awards with provisions stemming more specifically from requirements
concerning interim measures, constitutes a set of clauses incorporating
excessive and disproportionate double conditions', 3i the Commission

26 'Experience and Prospects' (see suprafn 8), at 21.

27 Official Records of the GeneralAssembly, Sixty-fiTst Session, Supplement No 17 (A/61/17),
Annex I.
28 Report of the Working Group on Arbitration on the work of its 32nd session (Vienna,
20-31 March 2000), A/CN.9/468, para 72.
29 Ibid, para 73.
30 Ibid, 38th session (New York, 12-16 May 2003), A/CN.9/524, para 20.
31 Comments by France (A/CN.9/609/Add 5).
INFLUENCE OF NY CONVENTION OF UNCITRAL MODEL LAW

adopted the text of Article 17(I) in a form that essentially preserves the
'important details' imported from Article 36.32

Deviationfrom the Convention to promote innovative interpretation

The form of the arbitration agreement: The term 'arbitration agreement'
in Article 7(1) of the 1985 version of the Model Law was defined along
the lines of Article 11 (1) of the Convention. However, in Article II of the
Convention, what might have been a definition was, in fact incorporated in
a provision mandating the recognition and enforcement of the arbitration
agreement. In contrast, the Model Law provides a definition and deals
separately with the recognition of the arbitration agreement. 33 The original
version of the Model Law followed the Convention in requiring the written
form or the arbitration agreement, although it was already recognised
that, in commercial arbitration, oral agreements were not unknown in
practice and were recognised by some national laws. In a way, the 1985
Model Law was even stricter than that Convention in that it disallowed
reliance on a 'more favourable provision', as would be possible under
Article VII of the Convention. The need that was felt in the 1985 version
of Article 7(2) was to add to the definition of written form as contained in
the New York Convention. One addition was intended to widen and clarify
the range of means which constitute a writing by adding 'telex or other
means of telecommunication which provide a record of the agreement',
in order to cover alternative future means of communication. The second
addition, contained in the last sentence, was intended to clarify a matter
that, in the context of the Convention, had led to problems and divergent
court decisions. It deals with the case where parties, instead of including
an arbitration clause in their contract, refer to a document (eg, general
conditions, or another contract) which contains an arbitration clause. The
reference constitutes an arbitration agreement if it is such as to make that
clause part of the contract (the implication being that the court would
rely on general contract law to decide whether the clause became part of
the contract).
The 2006 revision of Article 7 is intended to better accommodate situations
where the parties have agreed to arbitrate, but the arbitration agreement
was entered into in a manner that does not meet the form requirement. In
amending Article 7, the Commission adopted two options, which reflect two
different approaches to the question of definition and form of arbitration

32 Official Records of the GeneralAssembly, Sixty-fiTst Session, Supplement No 17 (A/61/17),

para 133.
33 See A/CN.9/264, Article 7, comments 1-7.
 DISPUTE RESOLUTION INTERNATIONAL Vol 2 No 1 May 2008

agreement. The first approach follows the detailed structure of the original
1985 text. It confirms the validity and effect of a commitment by the parties
to submit to arbitration an existing dispute ('compromis') or a future dispute
('clause compromissoire'). It follows the New York Convention in requiring
the written form of the arbitration agreement but recognises a record of
the 'contents' of the agreement 'in any form' as equivalent to traditional
'writing'. The agreement to arbitrate may be entered into in any form (eg,
including orally) as long as the content of the agreement is recorded. This
new rule is significant in that it no longer requires signatures of the parties
or an exchange of messages between the parties. It modernises the language
referring to the use of electronic commerce by adopting wording inspired
by the 1996 UNCITRAL Model Law on Electronic Commerce and the 2005
United Nations Convention on the Use of Electronic Communications in
International Contracts.
No attempt was made to include in the revised provision a uniform rule
to clarify how the consent of the parties to the arbitration is guaranteed in
a case where the arbitration clause is incorporated by reference. Instead,
the original 1985 wording was preserved to ensure that 'the reference in a
contract to any document' (for example, general conditions) 'containing
an arbitration clause constitutes an arbitration agreement in writing,
provided that the reference is such as to make that clause part of the
contract'. It thus clarifies that applicable contract law remains available to
determine the level of consent necessary for a party to become bound by
an arbitration agreement allegedly made 'by reference'. The mechanism
relying on Article 7 of the Model Law as a tool for interpreting Article
II of the Convention is made particularly complex in this case, since the
rule of interpretation is to be found not directly in the Model Law but in
surrounding domestic legislation.
The second approach defines the arbitration agreement in a manner that
omits any form requirement. Both options are intended to preserve the
enforceability of arbitration agreements under the New York Convention.
The Commission also adopted, at its 39th session in 2006, a
'Recommendation regarding the interpretation of Article II, paragraph
2, and Article VII, paragraph 1, of the Convention on the Recognition
and Enforcement of Foreign Arbitral Awards, done in New York, 10 June
1958' (A/61/17, Annex 2). The General Assembly, in its resolution 61/33
of 4 December 2006, noted that 'in connection with the modernization
of Articles of the Model Law, the promotion of a uniform interpretation
and application of the Convention on the Recognition and Enforcement
INFLUENCE OF NY CONVENTION OF UNCITRAL MODEL LAW

of Foreign Arbitral Awards, done in New York, IOjune 1958, is particularly

timely'. The Recommendation was drafted in recognition of the widening
use of electronic commerce and enactments of domestic legislation as
well as case law, which are more favourable than the New York Convention
in respect of the form requirement governing arbitration agreements,
arbitration proceedings, and the enforcement of arbitral awards. The
Recommendation encourages states to apply Article 11(2) of the New York
Convention 'recognizing that the circumstances described therein are not
exhaustive'. In addition, the Recommendation encourages states to adopt
the revised Article 7 of the Model Law. Both options of the revised Article
7 establish a more favourable regime for the recognition and enforcement
of arbitral awards than that provided under the New York Convention.
By virtue of the 'more favourable law provision' contained in Article VII
(1) of the New York Convention, the Recommendation clarifies that 'any
interested party' should be allowed 'to avail itself of rights it may have,
under the law or treaties of the country where an arbitration agreement
is sought to be relied upon, to seek recognition of the validity of such an
arbitration agreement'.

Concluding remarks

For the New York Convention to function, an environment based on

or comparable to the Model Law is required, ie, a basic set of rules of
arbitration law reflecting legislative policy that is broadly favourable to
arbitration. Both instruments have been great successes and deserved to
be. However, none of them is sufficient to clear all misunderstandings
and ensure the worldwide effectiveness of the arbitration system. Since its
early days in 1985, the Model Law has been characterised by a tendency
to reproduce or paraphrase widely the New York Convention, which is
understandable in view of the goal of UNCITRAL to ensure that both
the Convention and its supporting legislation are promoted in a manner
that ensures the highest level of clarity and consistency. In pursuing that
goal the authors and the revisers of the Model Law have been able to go
beyond the Convention by using its language to cover new grounds. To the
extent the past sheds any light on the possible future of the Model Law,
it would appear that a lot remains to be done, in particular to establish
a common understanding of procedural issues, to further promote a
uniform interpretation of the Convention and possibly to update some
of its provisions. The recent revision of the Model Law and its increasing
42 DISPUTE RESOLUTION INTERNATIONAL Vol 2 No 1 May 2008

role as a tool for interpreting the Convention may also suggest that further
improvements of the Model Law may be needed and possible, particularly
if the consequences of the most innovative provision in the Convention,
its Article VII, are drawn to a fuller extent.