Disputes under the UNCITRAL Arbitration Rules

Legal support under the UNCITRAL Arbitration rules

The United Nations Commission on International Trade Law (hereinafter referred to as “UNCITRAL” or “the Commission”) was established by the General Assembly in 1966. The rationale for the creation of this Commission was that obstacles to trade flows are discrepancies arising from the application of the laws of different States on international trade issues. UNCITRAL is seen as an instrument through which the United Nations could play a more active role in reducing or eliminating these obstacles.

The UNCITRAL Arbitration Rules (hereinafter referred to as the “Arbitration Rules”, “UNCITRAL Arbitration Rules”, “Arbitration Rules”) provide a comprehensive set of procedural rules upon which parties may agree for the conduct of arbitral proceedings arising out of their commercial relationship and are widely used in ad hoc arbitrations as well as administered arbitrations.

The Rules cover all aspects of the arbitral process, providing a model arbitration clause, setting out procedural rules regarding the appointment of arbitrators and the conduct of arbitral proceedings, and establishing rules in relation to the form, effect and interpretation of the award. At present, there exist four different versions of the Arbitration Rules:

1. the 1976 version;
2. the 2010 revised version;
3. the 2013 version which incorporates the UNCITRAL Rules on Transparency for Treaty-based Investor-State Arbitration;
4. the 2021 version which incorporates the UNCITRAL Expedited Arbitration Rules.

The UNCITRAL Arbitration Rules were initially adopted in 1976 and have been used for the settlement of a broad range of disputes, including disputes between private commercial parties where no arbitral institution is involved, investor-State disputes, State-to-State disputes and commercial disputes administered by arbitral institutions. In 2006, the Commission decided that the UNCITRAL Arbitration Rules should be revised in order to meet changes in arbitral practice over the last thirty years. The revision aimed at enhancing the efficiency of arbitration under the Rules without altering the original structure of the text, its spirit or drafting style.

The UNCITRAL Arbitration Rules (as revised in 2010) have been effective since 15 August 2010. They include provisions dealing with, amongst others, multiple-party arbitration and joinder, liability, and a procedure to object to experts appointed by the arbitral tribunal. A number of innovative features contained in the Rules aim to enhance procedural efficiency, including revised procedures for the replacement of an arbitrator, the requirement for reasonableness of costs, and a review mechanism regarding the costs of arbitration. They also include more detailed provisions on interim measures.

With the adoption of the UNCITRAL Rules on Transparency in Treaty-based Investor-State Arbitration (the “Rules on Transparency’) in 2013, a new article 1, paragraph 4 was added to the text of the Arbitration Rules (as revised in 2010) to incorporate the Rules on Transparency for arbitration initiated pursuant to an investment treaty concluded on or after 1 April 2014. The new paragraph provides for utmost clarity in relation to the application of the Rules on Transparency in investor-State arbitration initiated under the UNCITRAL Arbitration Rules. In all other respects, the 2013 UNCITRAL Arbitration Rules remain unchanged from the 2010 revised version.

With the adoption of the UNCITRAL Expedited Arbitration Rules in 2021, a new article 1, paragraph 5 was added to the text of the Arbitration Rules to incorporate the Expedited Rules as an appendix to the UNCITRAL Arbitration Rules. The phrase “where the parties so agree” in that paragraph emphasizes the need for the parties’ express consent for the Expedited Rules to apply to the arbitration.

In this case, the Arbitration Rules shall govern the arbitration proceedings, except that if any of their rules is inconsistent with a rule of law applicable to the arbitration from which the parties are not entitled to derogate, that rule of law shall apply. In order for the UNCITRAL rules to apply to a specific legal relationship, parties to foreign trade activities should include in the text of the contract a corresponding clause: 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.

The parties should consider adding the following information to the arbitration clause:

1. the appointing authority... (name of the institution or person);
2. the number of arbitrators... (one or three);
3. the place of arbitration... (city and country);
4. the language of the arbitration....

The party or parties initiating arbitration shall send to the other party or parties a notice of arbitration, which shall include:

1. a request to refer the dispute to arbitration;
2. the names and contact information of the parties;
3. an indication of the relevant arbitration agreement;
4. identification of any contract or other legal instrument out of or in relation to which the dispute arises or, in the absence of such contract or instrument, a brief description of the relevant legal relationship;
5. a brief description of the claim and, where applicable, an indication of the amount in dispute;
6. the relief or remedy sought;
7. a proposal as to the number of arbitrators, the language and the place of arbitration, unless previously agreed upon by the parties.

Within 30 days after receipt of the Notice of Arbitration, the respondent shall send to the claimant a response to the Notice of Arbitration that includes:

1. the name and contact information of each respondent;
2. a response to the information set out in the Notice of Arbitration.

Within such time as the arbitral tribunal shall fix, the claimant shall send to the respondent and each of the arbitrators a written statement of claim. If the claimant so chooses, it may treat the notice of arbitration as its statement of claim, provided that such notice of arbitration also meets the requirements for a statement of claim, which must include:

1. the names and contact information of the parties;
2. a statement of the facts supporting the claim;
3. the issues in dispute;
4. the relief or relief sought;
5. the legal grounds or arguments supporting the claim.

The statement of claim shall be accompanied, inter alia, by copies of any contract or other legal instrument out of or in relation to which the dispute arises and a copy of the arbitration agreement. The statement of claim shall, as far as possible, be accompanied by all documents and other evidence on which the claimant relies, or by reference to them.

Within such time as the arbitral tribunal may fix, the respondent shall file in writing its statement of defence with the claimant and each of the arbitrators. If the respondent so wishes, it may treat as a statement of defence its response to the notice of arbitration, provided that such response to the notice of arbitration answers the points of the statement of claim. The respondent's statement of defence shall, as far as possible, be accompanied by all documents and other evidence on which the respondent relies, or by reference to them.

However, the tribunal may conduct the proceedings in such manner as it considers appropriate, provided that the parties are treated equally and each is given, at an appropriate stage of the proceedings, a reasonable opportunity to present its case.

The arbitration tribunal shall, in its discretion, conduct the proceedings so as to avoid unnecessary delay and expense and to ensure a fair and efficient process for resolving the dispute between the parties. However, unless the parties have previously agreed on the place of arbitration, such place shall be determined by the arbitral tribunal having regard to the circumstances of the case.

The arbitral award shall be deemed to have been made at the place of the arbitration. Subject to the agreement of the parties, the arbitral tribunal, after its appointment, shall promptly decide on the language or languages to be used in the arbitration proceedings. This decision shall apply to the statement of claim, the defendant’s statement of defence and any other written statements and, if oral proceedings are held, to the language or languages ​​to be used in such proceedings.

It is also important to note that the arbitral tribunal shall, in accordance with the Arbitration Rules, apply the rules of law that the parties have agreed to apply in determining the merits of the dispute and, failing such agreement, the arbitral tribunal shall apply the law that it considers appropriate. In all cases, the arbitral tribunal will make an award in accordance with the terms of the contract, if any, and taking into account any trade usages applicable to the transaction.

It is important to note that the time limits set by the arbitral tribunal for the submission of written statements (including the statement of claim and the statement of defence) shall not exceed 45 days, but the arbitral tribunal may extend the time limits if it finds it justified.

The experience and qualifications of the specialists participating in the resolution of disputes under the UNCITRAL rules allow them to conduct cases and protect the interests of participants in foreign economic activity with minimal risks.

Legal services

1. Consulting on the application of the UNCITRAL Arbitration Rules
2. Preparation and drafting of documents for the possible application of UNCITRAL rules in dispute resolution
3. Legal support for disputes considered under the UNCITRAL Arbitration Rules