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UNCITRAL Arbitration Rules

2010: key changes

Resource type: Legal update: archive

Status: Published on 09-Aug-2010

Jurisdiction: International

Key amendments introduced by the UNCITRAL Arbitration Rules2010.PLC Arbitration

We recently reported that the newUNCITRAL Arbitration Rules 2010(2010 Rules) have been published and will come into force on 15August 2010 (seeLegal update, UNCITRAL publishes new rules).The 2010 Rules apply to arbitration following agreements concludedafter 15 August 2010, unless parties agree otherwise (Article 1(2)).Therefore, the previous version of the rules, the 1976 Rules, willcontinue to apply to arbitration following agreements pre-dating 15August 2010, unless the parties agree that the 2010 Rules shouldapply.The key changes in the 2010 Rules are highlighted below:

The model arbitration clause now includes additional optionalwording for parties wishing to exclude recourse against anaward, for example an appeal on a point of law.

Article 1(1): parties can agree to refer disputes arising out "adefined legal relationship, whether contractual or not" toarbitration under the UNCITRAL Rules.

Article 2: notices can be delivered electronically (by fax or e-mail) if a party has specifically designated a fax number or e-mail address for this purpose. The deemed date of delivery for

notices sent electronically is the day the notice was sent(apart from the notice of arbitration, for which the date of

delivery is the date of actual receipt).

Article 4: the respondent must provide a response to the noticeof arbitration within 30 days of receipt of the notice. Thisrequires respondents who wish to make claims against a partyto the arbitration agreement other than the claimant, toinclude a notice of arbitration against that party.

Article 6: if the parties have not agreed on an appointingauthority within 30 days (as opposed to 60 days under the1976 Rules), any party may request the Secretary-General of

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the Permanent Court of Arbitration (PCA) to designate anappointing authority. Therefore, the parties are encouraged toagree an appointing authority as soon as possible.

Article 10: this article provides for appointment of threearbitrators in a multi-party situation and empowers theappointing authority to constitute the tribunal where multipleclaimants or respondents cannot jointly appoint an arbitrator.This new provision reflects similar rules in, for example theInternational Chamber of Commerce (ICC) Rules (Article 10)and the London Court of International Arbitration (LCIA) Rules(Article 8) and is designed to provide for equal treatment ofthe parties in the appointment process.

Disclosure by arbitrators: there are new model statements ofindependence for arbitrators to complete at the time ofappointment. These include an optional paragraph requiringthe arbitrator to confirm that he can devote the timenecessary to conduct the arbitration "diligently, efficiently andin accordance with the time limits in the Rules".

Article 16: the parties waive their rights to make claims againstthe arbitrators and the appointing authority (and any personappointed by the tribunal), except in the case of intentionalwrongdoing.

Article 17: this article introduces several changes designed topromote the efficient conduct of proceedings:

Article 17(1) specifically requires the tribunal to conductthe proceedings so as to avoid unnecessary delay andexpense and to provide a fair and efficient process forresolving the parties' dispute;

Article 17(2) requires the tribunal to make a provisionaltimetable as soon as practicable after its constitution;and

Article 17(5) gives the tribunal the power, at the requestof any party, to allow third parties to be joined in thearbitration, provided they are a party to the arbitrationagreement.

Article 26: this article contains expanded provisions on the grantof interim measures by the tribunal. These include ordersrequiring a party to "preserve assets out of which asubsequent award may be satisfied", which appears toempower the tribunal to order security for costs. Article 26(3)

sets out the test that the applicant must satisfy for thetribunal to grant interim measures. Article 26(8) envisages

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that an applicant may be responsible for any costs ordamages caused to a party by a measure if the tribunal laterdecides that the measure should not have been granted.

Article 29(2): tribunal-appointed experts must provide thetribunal and the parties with a statement of independence andimpartiality, and the parties have the right to object to theexpert's qualifications or independence or impartiality.

Article 34(5): this article clarifies that the award may be madepublic with the parties' consent or where disclosure is requiredof a party by a legal duty, to protect or pursue a legal right orin relation to legal proceedings before a court or othercompetent authority.

Article 41(4): the tribunal must explain how their fees andexpenses have been calculated, and the parties may ask theappointing authority or the Secretary-General of the PCA toreview the calculations.

PLC Arbitration will update all of its practice notes and resources toreflect the changes made by the new rules. We will also bepublishing a new step-by-step guide on the 2010 Rules and acomparative table of the 1976 and 2010 Rules with the keyamendments highlighted throughout.