Update from UNCITRAL WG II 78th Session

The UNCITRAL Working Group (WG) II met in Vienna in September to advance their work on technology-related dispute resolution and adjudication. The Working Group (WG) sessions are a vital tool to harmonize international trade law through, in particular, uniform rules promoting and ensuring consistency in international arbitration.

Ciarb attends these sessions as an observer. Our participation in the deliberations of the WG is of paramount importance as it allows Ciarb representatives to contribute to discussions on arbitration and ADR of global, far-reaching importance, offer thought-leadership perspectives, expertise, and insights and ensure a well-rounded approach to drafting international standards and guidelines.

 Model clause for highly expedited arbitration

This particular clause was the subject of much discussion. The clause, for the purposes of the high-tech sector, found support but raised concerns about excessive regulation and due process. Some delegations proposed alternatives, such as swift dispute resolution through best practices, but acknowledged its limitations for complex cases. To address due process concerns, recommendations to grant arbitrators discretion in extending procedural time frames were voiced.

 Model clause related to the Expert Determination Procedure

Discussions focused on the proposal to include a preamble to clarify the intent of streamlined dispute resolution using a third-party expert for enforceability. For more clarity, some delegations suggested renaming the clause and finding a better-suited term for the procedure (the alternatives offered included "technical determination" or "neutral determination").

Further discussions touched upon enforceability of the expert's decision, its scope and the practicality of the clause in different jurisdictions.

 Model clause on Experts Accompanying the Tribunal

Comments have been made regarding the issue of transparency due to the possibility of oral communications between the tribunal and the expert. Ciarb highlighted that private communications in which the parties are not present can take place. Such possibility, however, should be limited to the expert’s mission, being to operate calculations on the basis of the assumptions provided to the expert by the tribunal and not to propose decisions or new arguments.

The idea of including the expert as a co-arbitrator was also discussed, however did not receive substantial support due to concerns around transparency. Jurisdictions with similar mechanisms in their national legal systems were invited to share their experiences with the Secretariat.

Confidentiality model clause in high-tech disputes

Lastly, the WG emphasized the importance of a confidentiality model clause in high-tech disputes and arbitration in general. Suggestions were made to include sanctions or remedies for compliance, addressing breaches and concerns about exceptions. Also, the question of what should be the status of information disclosed unlawfully was raised.

Guidance texts

The Group also discussed proposed Guidance texts on Confidentiality and Evidence. It was generally agreed that such texts are of value. However, no agreement has been reached with regard to scope and wording.

The Guidance on Expeditious Arbitration was seen as redundant. However, comments have been made on its content. Ciarb, among others, emphasised that the proposed possibility of naming arbitrators in the arbitration agreement could result in procedural deadlocks.

The next session of the Group will continue to cover technology-related dispute resolution and is scheduled to take place in February 2024.

More information about the most recent and other sessions of the Working Group can be found here.

About the author: Kateryna Honcharenko is Ciarb’s Arbitration Professional Practice Manager. She holds an LL.M in comparative and international dispute resolution from Queen Mary University of London and an LL.M in international trade regulation from the Institute of International Relations, Taras Shevchenko National University of Kyiv, where she also obtained an LL.B in international private law. Kateryna co-authors the Ciarb Guidance Note on Remote Dispute Resolution Proceedings, Ciarb Framework Guideline on the Use of Technology in International Arbitration and acts as the lead UNCITRAL Working Group II (Dispute Settlement) delegate.