06 Oct 2021
The 74th session of the United Nations Commission on International Trade Law (UNCITRAL) Working Group II was held on 27 September - 1 October 2021. As always, it was a great pleasure and privilege for the Chartered Institute of Arbitrators to participate as observers in the Working Group.
The session was dedicated to the finalisation of the draft Explanatory Note to the UNCITRAL Expedited Arbitration Rules, deliberations on inclusion and possible form of the draft provision on pleas as to the merits and preliminary determination. The Commission also flagged future endeavours, including those which will be discussed at the next session, scheduled to take place in New York in spring 2022.
Previously, the Working Group finalised and adopted the UNCITRAL Expedited Arbitration Rules. During the 74th session, the Working Group was asked to finalise the draft Explanatory Note to the UNCITRAL Expedited Arbitration Rules.
The Working Group reviewed numerous essential topics covered in the Explanatory Note, which supplement and elaborate on the provisions of the newly adopted Expedited Arbitration Rules, in particular, designating and appointing authorities, appointment of the arbitrator, period of time for making the award.
After extensive comments submitted by the delegates from Switzerland, Israel, Finland, the US, France and others have been considered, the Explanatory Note was finalised and adopted.
Upon finalisation of the Explanatory Note, the Working Group was able to move to the next, but notless important topic of the agenda, and engaged in a preliminary discussion on the topic of early dismissal and preliminary determinations.
Andrés Jana, the Chair of the Working Group, invited all delegates to express general comments on the content of the draft provision and highlight substantial issues which, in their opinion, have to be taken into consideration.
Delegates from Spain, Belgium, the Russian Federation, China, Mexico, Switzerland, Canada and others expressed a wide range of views. In particular, some delegates pointed out that adoption of this provision could improve the efficiency of arbitration proceedings and facilitate amicable settlement of the dispute at an early stage, but has to be time and cost-efficient and maintain the balance of the tribunal’s powers and parties’ rights.
CIArb also took part in the discussion and fully supported the decision of the Working Group to consider the draft provision:
As this Group works to develop the technical aspects of these tools more fully, we want to highlight once more the context in which they will be primarily applied. As the UNCITRAL Rules are fundamentally for use in ad hoc settings, we encourage the states to develop language that empowers arbitrators to use these options for the benefit of the parties while preserving the competence-competence authority of the tribunal to the fullest extent possible, allowing arbitrators to exercise their powers in making appropriate determinations of issues freely and on a case by case basis. Maintaining this balance is vital to the successful long-term uptake of any early determination options and we take this opportunity to ask the Members that this be kept ever at the forefront of consideration.
Having reviewed the general approach to the nature of the draft provision, the scope of its importance and possible consequences, the Group then moved on to consider specific elements of the provision, its legal standard, form and precise content. Three possible forms of work were considered and while delegations expressed divergent and flexible views on which form would be the most appropriate and efficient, it was emphasised that they would not be mutually exclusive:
First, a specific, detailed provision, which would offer a list of pleas allowed;
Second, a simpler, generic provision, which would not specify a clear procedure to follow, however, would make an emphasis on the power of the tribunal to make preliminary determinations;
Third, a guidance document, which would highlight how the existing powers of the tribunal, covered in the UNCITRAL Arbitration Rules, can be understood to be able to conduct early determinations.
The Secretariat, therefore, was asked to present different possible options of the future form of work on the matter based on the views expressed by delegates.
We look forward to seeing how this essential matter will be dealt with during the upcoming UNCITRAL Working Group II sessions.
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