国际商事仲裁机制

第一节　国际商事仲裁机制

Section 1　International Arbitration Mechanism

【The Fundamental】

International arbitration is a leading method for resolving disputes arising from international commercial agreements and other international relationships. As with arbitration generally, international arbitration is a creature of contract, i.e., the parties’ decision to submit disputes to binding resolution by one or more arbitrators selected by or on behalf of the parties and applying adjudicatory procedures, usually by including a provision for the arbitration of future disputes in their contract. The practice of international arbitration has developed so as to allow parties from different legal and cultural backgrounds to resolve their disputes, generally without the formalities of their respective legal systems. In most instances, International arbitration involves a final and binding decision, producing an award that is enforceable in a national court. The decision-makers (the arbitrators), usually one or three, are generally chosen by the parties. Parties also decide whether the arbitration will be administered by an international arbitral institution, or will be ad hoc, which means no institution is involved. The rules that apply are the rules of the arbitral institution, or other rules chosen by the parties. In addition to choosing the arbitrators and the rules, parties can choose the place of arbitration and the language of arbitration. International arbitration thus gives the parties substantial autonomy and control over the process that will be used to resolve their disputes. This is particularly important in international business transactions because usually parties do not want to be subject to the jurisdiction of the other party’s court system. Each party fears the other party’s home court advantage. International arbitration offers a more neutral forum, where each side believes it will have a fair hearing. Moreover, the flexibility of being able totailor the dispute resolution process to the needs of the parties, and the opportunity to select arbitrators who are knowledgeable in the subject matter of the dispute, make arbitration particularly attractive.

A. Main Features of International Arbitration

International arbitration has enjoyed growing popularity with business and other users over the past 50 years. There are a number of reasons that parties elect to have their international disputes resolved through arbitration. These include the desire to avoid the uncertainties and local practices associated with litigation in national courts, the desire to obtain a quicker, more efficient decision, the relative enforceability of arbitration agreements and arbitral awards (as contrasted with forum selection clauses and national court judgments), the commercial expertise of arbitrators, the parties’ freedom to select and design the arbitral procedures, confidentiality and other benefits.

International arbitration is sometimes described as a hybrid form of dispute resolution, which permits parties broad flexibility in designing arbitral procedures. As one example, consider the International Bar Association (IBA)’s Rules on the Taking of Evidence in International Commercial Arbitration^[1], revised in 2010. These rules adopt neither the common law jurisdictions’ broad disclosure procedures (Discovery)^[2], nor follow fully the civil law in eliminating entirely the ability to engage in some disclosure-related practices. The IBA Rules blend common and civil systems so that parties may narrowly tailor disclosure to the agreement’s particular subject matter. David Rivkin, who chaired the committee that drafted the rules, has noted that the wide adoption of these rules in international arbitration has led in practice to an unexpected use by common law practitioners to limit disclosure and by civil law practitioners to expand it. With a possibly more intuitive cause and practical effect, arbitral tribunals will often read party election of the IBA Rules as an election most akin to US-style Discovery. This is hardly surprising given the Rules’ language and the IBA’s close ties through the years to the American Bar Association (ABA). The Rules of evidence represents just one example of the different practice that applies to international arbitration, and whichdistinguishes it from provincial forms of arbitration rooted in the procedures of a particular legal system. Similarly, international arbitral practice has given rise to its own non-countryspecific standards of ethical conduct which are believed to apply in international proceedings and, more to the point, to the arbitrators who are appointed to conduct them. Specifically speaking, the following features are obviously embodied in international arbitration:

1. Consent.

The parties’ consent provides the underpinning for the power of the arbitrators to decide the dispute. The parties’ consent also limits an arbitrator’s power because an arbitrator can only decide issues within the scope of the parties’ agreement. Arbitrators are also expected to apply rules, procedures, and laws chosen by the parties. Normally, the parties express their consent to submit any future dispute to arbitration in a written agreement that is a clause in the commercial contract between them. If they do not have an arbitration clause in their contract, however, they can still enter into an agreement after a dispute has arisen. This is known as a submission agreement.

2. Non-governmental decision-makers.

Arbitrators are private citizens. They do not belong to any government hierarchy. Compared with judges, they will probably weigh less heavily any questions of public policy or public interest, since they see their primary responsibility as deciding the one dispute they were chosen by the parties to decide. Also, unlike some judges, arbitrators tend to be very thoughtful of the parties, and considerate in their interactions with them. Arbitrators are chosen by the parties, and, of course, they would like to be chosen again. It is in their interest to be perceived as even-tempered, thoughtful, fair-minded, and reasonable. Arbitrators do not have to be lawyers, either. In some industries, the technical skills of architects and engineers cause them to be chosen as arbitrators. When there are three arbitrators, quite often each party will choose one arbitrator, and the third, who will be the chair, will be chosen by the two party-appointed arbitrators. International arbitrators are, however, all expected to be independent and impartial. They can be challenged, either before the arbitral institution or a court, if there is evidence that they are not independent and impartial.

3. A final and binding award.

One of the reasons parties choose to arbitrate is that arbitration results in a final and binding award that generally cannot be appealed to a higher level court. Although there are occasional opportunities to appeal in some jurisdictions, for the most part, a party can challenge an award only if there is some defect in the process. A party can try to vacate the award in the court of the country where the arbitration was held (the seat of the arbitration). However, under mostarbitration laws, the only grounds for setting aside an award will be quite narrow, such as a defect in the procedure, or an instance where the arbitrators exceeded their powers and decided an issue that was not before them. Once the arbitrators render an award, the losing party may voluntarily comply with the terms of the award. If it does not, the prevailing party will try to have the award recognized and enforced by a court in a jurisdiction where the losing party has assets. In the enforcing court, the losing party can also challenge the award, but again, only on very narrow grounds. Basically, the award cannot be challenged on the merits, that is, even if the arbitrators made mistakes of law or mistakes of fact, these are not grounds for non-enforcement, and the award will still be enforced. Once a party’s award is recognized in the enforcing jurisdiction, it is generally considered to have the same legal effect as a court judgment, and can be enforced in the same way that a judgment would be enforced in that jurisdiction.

B. Differences with Domestic Arbitration and Mediation

International arbitration is a significant variant of the practice in many countries of arbitration, from which it is derived and shares many features. It is not just the fact that international arbitration arises in the context of international contracts that makes it different. In the international dispute resolution community, it is widely accepted to be a different animal entirely, involving different practices and rules, and being represented by a different community of arbitrators and legal practitioners.

It is essential to draw a firm distinction between Arbitration and Mediation or Conciliation, which are both sometimes characterized as forms of ADR (Alternative Dispute Resolution). In countries where mediation is new or struggling to be introduced as a concept, this association has given rise to the misleading impression that mediation is a form of non-binding arbitration, with the arbitrator proposing or suggesting outcomes based on an assessment of the parties’rights. In fact, arbitration and mediation or conciliation are fundamentally different: the former is a binding determination of legal rights, the latter two forms of dispute resolution involve facilitated negotiation which aims at producing a consensual settlement. The one leads to a binding determination (arbitration), the other only in the event the parties agree to settle their dispute on mutually satisfactory terms (mediation).

C. Advantages of International Arbitration

For international commercial transactions, parties may face many different choices when it comes to including a mechanism for resolving disputes arising under their contract. If they are silent, they will be subject to the courts of wherever a disaffected party decides to initiate legal proceedings and believes it can obtain jurisdiction over the other party. This may not sitwell with parties that need to know at the time of entering into their contract that their contractual rights will be enforced. The alternative to silence is to specify a method of binding dispute resolution, which can be either litigation before the domestic tribunal of one of the parties or arbitration. If the parties choose to resolve their disputes in the courts, however, they may encounter difficulties.

The first is that they may be confined to choosing one or the others’ courts, as the courts of a third country may decline the invitation to devote their resources to deciding a dispute that does not involve any of that country’s citizens, companies, or national interests. An exception to that rule is New York State, which will not entertain a forum non conveniens^[3]motion when the dispute concerns a contract that is worth one million dollars or more and in which the parties included a choice-of-law clause calling for application of New York law. The second, and perhaps more significant difficulty, is that judicial decisions are not very “portable” in that it is difficult and sometimes impossible to enforce a court decision in a country other than the one in which it was rendered.

The benefits of international commercial arbitration are substantial. An empirical study of why parties choose international arbitration to resolve disputes found that the two most significant reasons were (a) the neutrality of the forum (that is, being able to stay out of the other party’s court) and (b) the likelihood of obtaining enforcement, by virtue of the New York Convention (the United Nations Convention on Recognition and Enforcement of Foreign Arbitral Awards of 1958)^[4], a treaty to which over 140 countries are parties. An arbitrationaward is generally easier to enforce internationally than a national court judgment because under the New York Convention, courts are required to enforce an award unless there are serious procedural irregularities, or problems that go to the integrity of the process. The New York Convention is considered to have a pro-enforcement bias, and most courts will interpret the permissible grounds for non-enforcement quite narrowly, leading to the enforcement of the vast majority of awards.

Other advantages include the ability to keep the procedure and the resulting award confidential. Confidentiality is provided in some institutional rules, and can be expanded (to cover witnesses and experts, for example) by the parties’ agreement to require those individuals to be bound by a confidentiality agreement. Many companies want confidential procedures because they do not want information disclosed about their company and its business operations, or the kinds of disputes it is engaged in, nor do they want a potentially negative outcome of a dispute to become public.

Parties also like being able to choose arbitrators with particular subject matter expertise. In addition, they like the fact that there is less discovery in arbitration, thereby generally resulting in a shorter process than in a full scale litigation, or at least shorter than is found in U.S.-style litigation. The lack of opportunity for multiple appeals of the decision on the merits is also an attractive aspect. For business people, there is great value in finishing a dispute so they can get on with their business.

While one advantage that has been touted in the past is that arbitration is less expensive than litigation, many companies today do not think that advantage actually exists. As international arbitrations have grown in number and in the amount of money at stake, parties have increasingly incorporated many litigation tactics into arbitration. These tactics tend to raise the costs, create delays, and increase the adversarial nature of the process. Nonetheless, even if the arbitration process has begun to resemble litigation in a number of ways, parties tend to find that arbitration is still worth the cost, because of the other advantages it provides.

D. Disadvantages of International Arbitration

To an extent, some of the disadvantages of arbitration are the same as the advantages, just viewed from a different perspective. For example, less discovery may be generally viewed as an advantage. Nonetheless, certain kinds of disputes, which typically involve extensive discovery, such as antitrust disputes, are increasingly arbitrated. These kinds of disputes often require the aggrieved party to prove a violation that it can only prove if it has sufficient access to documents under the control of the offending party. Less discovery in this kind of casemeans less of a chance for a claimant to meet its burden of proof.

Moreover, the lack of any right of appeal may be a benefit in terms of ending the dispute, but if an arbitrator has rendered a decision that is clearly wrong on the law or the facts, the lack of ability to bring an appeal can be frustrating to a party. For this reason, some parties in the United States have written into their arbitration agreements a right to a judicial appeal on the merits of an arbitration award. The federal circuit courts are divided on whether this is permitted under the Federal Arbitration Act. The issue will be decided by the U.S. Supreme Court in the term beginning in October 2007.

Another disadvantage is that arbitrators have no coercive powers, that is, they do not have the power to make someone do something by being able to penalize them if they do not. A court, for example, can impose a fine for contempt if someone does not comply with a court order. Arbitrators, on the other hand, cannot impose penalties, although they can draw adverse inferences if a party does not comply with an order of the tribunal. However, with respect to non-parties, arbitrators generally have no power at all. Thus, it may be necessary at times for the parties or the tribunal to seek court assistance when coercive powers are necessary to ensure compliance with the orders of the tribunal.

Moreover, in multiparty disputes, an arbitral tribunal frequently does not have the power to join all relevant parties, even though all may be involved in some aspect of the same dispute. Because the tribunal’s power derives from the consent of the parties, if a party has not agreed to arbitrate, usually it cannot be joined in the arbitration. A tribunal generally does not have the right to consolidate similar claims of different parties, even if it would be more efficient for all concerned to do so.

Finally, it could be viewed as a disadvantage that the pool of experienced international arbitrators lacks both gender and ethnic diversity. Although some institutions and a few individual members of this group have made efforts to broaden that pool, on the whole there has been little change.

E. Neutrality and Enforceability of Arbitration Awards

The ability to resolve disputes in a neutral forum and the enforceability of binding decisions are often cited as the main advantages of international arbitration over the resolution of disputes in domestic courts. And there is solid legal support for this view. The principal instrument governing the enforcement of commercial international arbitration agreements and awards is the New York Convention. The New York Convention was drafted under the auspices of the United Nations and has been ratified by more than 140 countries, including most major countries involved in significant international trade and economic transactions.The New York Convention requires that the states that have ratified it to recognize and enforce international arbitration agreements and foreign arbitral awards issued in other contracting states, subject to certain limited exceptions. These provisions of the New York Convention, together with the large number of contracting states, has created an international legal regime that significantly favors the enforcement of international arbitration agreements and awards. As a practical matter, what that means is that an international award originating in a country that is a party to the New York Convention may be enforced in any other country that is also a signatory, as if that award were actually rendered by the domestic courts of that second country. Here is an example of this important concept: assume that parties from countries A and B have agreed to resolve their disputes in country C, and all three countries are parties to the New York Convention. This will mean that even though the arbitration will take place in country C, the resulting award can be enforced in countries A or B, as if it were a court decision rendered in the domestic courts of that country. (By contrast, there is no equivalent treaty for the international recognition of court decisions, although a draft treaty, Hague Convention of 30 June 2005 on Choice of Court Agreements, was initiated in 2005.^[5])

Thus, parties to international contracts can decide to site their disputes in a third, neutral country, knowing that the eventual award can be easily enforced in any country that is a signatory to the New York Convention, which has been ratified by a significant majority of commercial nations (with notable exceptions like Iraq, which, not having ratified the New York Convention, cannot be assumed to give effect to arbitration decisions rendered in other countries). An international award therefore has substantially greater executory (legal) force than a domestic court decision.

Under the New York Convention, if a party to arbitration commences legal proceedings in breach of an arbitration agreement against another contracting party, the court is obligated to stay the proceedings. Chapter 2 of the Federal Arbitration Act sets forth the statutory basis for an American court to issue a stay in connection with contracts falling within the ambit of the New York Convention.

F. International Arbitration Clauses

Most arbitral institutions have promulgated model clauses for parties to use to authorizethe institution to oversee the arbitration. A number of essential elements should be included in almost all international arbitration agreements.^[6]These include the agreement to arbitrate, a definition of the scope of disputes subject to arbitration, means for selecting the arbitrator(s), a choice of the arbitral seat and the adoption of institutional or ad hoc arbitration rules. A number of other provisions can also be included in international arbitration clauses, including the language for the conduct of the arbitration, choice of applicable law, arbitrator qualifications, interim relief, costs, procedural matters and the like.

In order to bridge the gap when parties to an international agreement have difficulty in agreeing upon an arbitral institution, some international arbitration specialists recommend using an arbitration clause that authorizes two arbitral institutions in the same city. Those clauses generally empower the party commencing the arbitration to select the arbitral institution.

G. Institutional Arbitration v. Ad hoc Arbitration

One of the choices parties must make when they decide to arbitrate is whether they want their arbitration to be administered by an arbitral institution, or whether they want the arbitration to be ad hoc. There are advantages and disadvantages for each choice. With an institutional arbitration, the advantages are that the institution performs important administrative functions. It makes sure the arbitrators are appointed in a timely way that the arbitration moves along in a reasonable manner and that fees and expenses are paid in advance. From the arbitrators’ point of view, it is an advantage not to have to deal with the parties about fees, because that subject is handled by the arbitral institution. Moreover, the arbitration rules of the institution are time-tested and are usually quite effective to deal with most situations that arise. Another advantage is that an award rendered under the auspices of a well-known institution may have more credibility in the international community and the courts. This may encourage the losing party not to challenge an award.

With an ad hoc arbitration, there is no administering institution. One advantage, therefore, is that the parties are not paying the fees and expenses of the administering institution. Theparties also have more opportunity to craft a procedure that is very carefully tailored to the particular kind of dispute. They may draft their own rules, or they may choose to use the UNCITRAL Arbitration Rules,^[7]which are frequently used in ad hoc arbitrations.(UNCITRAL itself does not administer arbitrations and is not an arbitral institution.) Ad hoc arbitrations are sometimes particularly useful when one of the parties is a state, and there may be a need for more flexibility in the proceedings. It can be decided, for example, that neither party is the respondent, since both sides have claims against each other. Then each party will simply have the burden of proof of the claims it raises against the other party. An ad hoc proceeding can be disadvantageous, however, if either of the parties engages in deliberate obstruction of the process. In that situation, without an administering institution, the parties may have to seek the assistance of the court to move the arbitration forward.

H. Arbitral Institutions and Rules

As international commercial arbitration has grown and expanded with the growth of international business, arbitral institutions have also grown and changed. The resolution of disputes under international commercial contracts is widely conducted under the auspices of several major international institutions and rule making bodies. The most significant are the International Chamber of Commerce (ICC),^[8]the American Arbitration Association(AAA)/the International Centre for Dispute Resolution (ICDR),^[9]the London Court of International Arbitration (LCIA),^[10]Stockholm Chamber of Commerce (SCC),^[11]the Hong Kong International Arbitration Centre,^[12]China International Economic and Trade Arbitration Commission (CIETAC),^[13]and the Singapore International Arbitration Centre (SIAC).^[14]Specialist ADR bodies also exist, such as the World Intellectual Property Organization (WIPO), which has an arbitration and mediation center and a panel of international neutrals specializing in intellectual property and technology related disputes.

Of which, the International Chamber of Commerce (ICC) International Court of Arbitration is one of the better-known and most prestigious arbitral institutions. The International Court of Arbitration is not a court in the ordinary sense of the word; it is not part of any judicial system. Rather, the Court of Arbitration is the administrative body that is responsible for overseeing the arbitration process. Its members consist of legal professionals from all over the world. In addition, the ICC has a Secretariat, which is a permanent, professional administrative staff.

A number of arbitral institutions have adopted the UNCITRAL Rules for use in international cases. The most salient feature of the rules of the ICC is its use of the “terms of reference.” The terms of reference is a summary of the claims and issues in dispute and the particulars of the procedure, and it is prepared by the tribunal and signed by the parties near the beginning of the proceedings.

Many arbitral institutions have updated their rules to present an international arbitration-friendly format, and to improve their ability to deal with certain issues, so that court assistance will not be needed as often. For example, the ICDR has added a rule that improves the institution’s ability to respond promptly to a claimant’s need for emergency relief, which may occur even before the tribunal has been formed. If emergency relief is not available in some form at an early stage, a party has no choice but to seek relief from a court. Institutions vary in cost and quality of administration. Many companies prefer to work with the older, better established institutions, even if the cost may be somewhat higher. Parties are concernedthat if they go with a brand new arbitral institution, that institution might not be in business a few years down the road when a dispute might arise.

(Adapted from Chapter 1 of the Principles and Practice of International Commercial Arbitration written by Margaret L. Moses, Loyola University, Chicago, USA and published by Cambridge University Press in June 2008.)

[The Reflections]

1. How do you understand the autonomy of international economic arbitration?

2. What are the features of international economic arbitration?

3. What are the advantages and disadvantages of international economic arbitration?

4. What are the differences between international arbitration and international mediation or conciliation?

5. How do you understand the neutrality and enforceability of international arbitration awards?

6. What are the differences between the institutional arbitration and ad hoc arbitration?

【The In-depth】

The Revised UNCITRAL Arbitration Rules of 2010: A Commentary

In light of the success of the 1976 Rules, it was not until 2006, three decades later, that the UNCITRAL Commission decided that a review should be undertaken to determine what revisions may be required to meet the changes in arbitral practice since the 1976 Rules were first adopted. The revision process was largely focused on resolving problems in practice and codifying best practice, to enhance the efficiency of arbitration conducted under the Rules. Over eight sessions, spanning a period of five years, a specialist Working Group on International Arbitration drafted and developed what essentially forms the basis of the updated Rules. This draft was put to the UNCITRAL Commission, which chose to adopt the final text on 25 June 2010 (the “revised Rules” or the “2010 Rules”). The revised Rules will apply to arbitration agreements governed by the UNCITRAL Rules entered into after 15 August 2010.

At first glance, the changes made to the revised Rules are constructive, shrewd, and seem in line with UNCITRAL’s stated purpose of resolving practical issues to enhance the operational efficiency of the Rules. This, no doubt, reflects the significant efforts of all involved in the UNCITRAL Commission and Working Group to make changes only where deemed necessary to update the Rules. The revisions create a more streamlined structure, and simultaneously update the Rules in line with the realities of modern methods of arbitration. This is seen in the recognition and regulation of joinder and multi-party disputes, the‘future-proofing’ of the provisions relating to service and communication, and the myriad of procedural amendments to enhance arbitral efficiency.

However, and perhaps as an inevitable by-product of UNCITRAL’s consultative process, some of the articles seem to be longer than necessary. The Working Group involved representatives from up to 60 of UNCITRAL’s member states, as well as representatives from observer states and international non-governmental organizations. Many representatives were educated and practice in different jurisdictions, with vastly different legal systems and varying practical arbitral procedure. The well-intentioned jurisdiction-specific concern of these representatives led to divergent drafting approaches, and perhaps overly-prescriptive provisions in the revised Rules. This is not necessarily negative per se—as long as clarity is improved. However, the increased size makes the rules more difficult to grasp quickly, and any extra textual provision may create further scope for ambiguity in interpretation.

Additionally, it is clear that a broad push towards institutionalization has been reflected in the Rules. This is seen, for example, in the greater role for appointing authorities, increased (or at least, ongoing) disclosure requirements for arbitrators (pursuant to Article 11) and the immunity of arbitrators and appointing authorities from liability (Article 16). These changes represent an increasing codification of the Rules. While this will no doubt assist in overcoming the most egregious breaches by parties or arbitrators, it may be that the Rules are becoming overly prescriptive. Commonly suggested in response is that the Rules are voluntary, and parties can avoid the operation of the Rules or sections thereof by agreement. However, it is difficult to foresee situations in concluding a contract where specific provisions of the Rules are agreed to be omitted or altered. The only real scope to negotiate then becomes after a dispute has arisen: a hard task for even the most able negotiator, particularly where one negotiating party will necessarily face a detriment compared to the default position offered under the revised Rules. Prior to the revised Rules, the 1976 Rules would simply have beensilent on a number of points, encouraging negotiation (and of course, the tactical delays which come with it).

It may be that this increasing codification and regulation of the revised Rules comes into conflict with parties’ reasons for choosing to employ ad hoc arbitration: simplicity, flexibility and unrivalled party autonomy. No doubt this freedom gives rise to the very problems the revised Rules seek to solve. However, this is essentially what parties signed up for by choosing ad hoc arbitration—had they wanted to be overseen by an arbitral institution, or to some extent by an ‘appointing authority’ they could have chosen to do so. Nonetheless, by choosing the UNCITRAL Rules, it may be that parties accept some degree of oversight, for the sake of procedural efficiency, in exchange for sacrificing some flexibility.

On balance, the revised Rules are clearly a positive force in the field of arbitration. Whilst those who see ad hoc arbitration as the ultimate expression of flexibility and party autonomy have complained of a creeping codification and institutionalization, the Rules remain an agreement of choice, and the changes in the revised Rules are largely procedural. As the revised Rules remain on the forefront of arbitrators and arbitration lawyers’ minds, this will, no doubt, encourage arbitral institutions across the globe to consider afresh their own rules and practices. Yet it is too early to say what the practical impact of the tension between regulation and party autonomy will be.

As the scope of the revision of the Rules was, for the most part, limited to resolving practical problems with the 1976 Rules, the revised Rules can hardly be described as ground breaking. Where progress has been made it is reflected in its incremental nature. As the UNCITRAL Rules serve as a benchmark for other arbitration rules, are intended to apply to ad hoc arbitrations, and offer worldwide applicability and scope, this is exactly what the revision process of the Rules should be tailored towards. That is, the achievement of a largely constant, mature base of arbitral best practice. The Rules should be built on durable foundations and not on experimental provisions (with all the uncertainty that comes with being on the ‘cutting edge’). Instead, stability and predictability allow the Rules to be more broadly applicable—from all forms of commercial arbitration disputes, through to the more specialized State-State or investor-State disputes. Contracting parties also face greater certainty, as they can more readily define and predict their exact obligations and rights under the Rules, and how particular provisions are likely to be interpreted and applied by an arbitral tribunal.

While there may be an intermittent period of ambiguity as to the meaning of certainprovisions, as Professor Waincymer suggests, any remaining ambiguity will see resolution by leading arbitrators and commentators. Over time, this will assist in creating common procedural norms and a de facto practical standard. Nonetheless, it may be that more conservative parties specify that the 1976 Rules are to apply, waiting for such norms, procedure and practice to resolve substantially before choosing to adopt the revised Rules. It will no doubt also be the case that the changes to the Rules will go unnoticed by a number of contracting parties who specify, simply, that the ‘UNCITRAL Rules’ are to apply. For all agreements that do not specify a particular version, after August 15, 2010, the revised Rules will apply. However, for the most part, it will not make a significant practical difference. The major changes will be noticed, if at all, in ad hoc arbitrations which now face increased regulation, and in the greater efficiency and modernity that the procedural amendments accord.

On balance, and perhaps due to the conservative nature of the changes, the revised Rules do justify departure from the 1976 Rules. The incremental nature of the change minimizes any ambiguity in interpretation. No doubt, as discussed above, more conservative parties will attempt to use the 1976 Rules, at least until they see how the revised Rules perform in practice. The Rules strike a careful balance between innovation and stability. However, it may be said that perhaps they err too strongly in favor of the latter. Nonetheless, the Rules have been brought forward into the future, in a careful manner, mindful of the fact that they must be stable, predictable, and potentially applicable for another three decades or more.

At this point it may also be wise to consider whether there is need for a more regular review of the Rules. In this instance, UNCITRAL should be commended for the work it has done, especially with its limited resources. However, given the speed at which modern arbitral practice is developing, a review process begun every three decades, and lasting for five years, may not be enough to keep the Rules sufficiently up to date. Indeed, there is no requirement that a review even take place within a defined period of time. I anticipate that the next review of the Rules will be seen in less than three decades—but now may be an opportune time for UNCITRAL to discuss some sort of automatic review process, whereby a determination can be made if a formal review of the Rules is deemed necessary.

(Abridged from the identically named article by Justice Clyde Croft from Supreme Court of Victoria)

[The Terms]

1. UNCITRAL Commission: United Nations Commission on International Trade Law（联合国国际贸易法委员会）

2. A Specialist Working Group on International Arbitration: 国际仲裁专家工作组

3. UNCITRAL Rules: 联合国国际贸易法委员会仲裁规则

4. Joiner and multi-party disputes: 混合（多方）申请人/被申请人争端

5. An arbitral institution: 仲裁机构

6. Ad hoc arbitration: 临时仲裁

7. Appointing authorities: 仲裁员指定机构

8. Contracting parties/states: 缔约方（国）

[The Discussions]

1. The significance of the revised articles of designating and appointing authorities.

2. The conditions to seek an interim relief which the revised Rules have made.

3. The objective of ‘future-proofing’ of the revised Rules.

4. The impact the revised Rules are likely to have on arbitration.

【The Further Sources】

E. Gaillard, Legal Theory of International Arbitration, Martinus Nijhoff Publishers, May 2010.

Fouchard Gaillard Goldman On International Commercial Arbitration, Kluwer, 1999.

Margaret L. Mose, The Principles and Practice of International Commercial Arbitration, Cambridge University, June 2008.