A CHIEVEMENTS AND L IMITS OF THE UNCITRAL M ODEL L AW ’ S A NNULMENT R EGIME Prepared by Bertrand Derains & Hamid Gharavi

INTRODUCTION AND CONTENT No multilateral Conventions on the extent of control of Arbitral Awards by national Courts Objective of the Model Law: to harmonize national laws on arbitration, including the means of recourse against and the extent of control of arbitral awards I) Achievements of the Model Law in Terms of Harmonization of the Annulment Regime II) Limits of the Model Law in Terms of Harmonization of the Annulment Regime III) Suggestions on the Nature and Extent of Possible Reform to Take the Harmonization One Step Further

I. The Achievements of the Model Law A) The Exclusive Nature of the annulment Proceedings - Art. 34 of the Model Law B) The Exclusive Jurisdiction of Courts at the Place of Arbitration - Art. 1(2) of the Model Law C) The Exhaustive Nature of the Annulment Grounds - The annulment action may only be undertaken in accordance with the grounds and modalities contained in Article 34(2) of the Model Law

II. The Limits of the Model Law Out of the 65 States purporting to have adopted or taken inspiration from the Model Law, only one third have more or less faithfully adopted the provisions of Article 34 of the UNCITRAL Model Law. The remaining States and other States have opted for a different regime, namely modalities of control more (A) or less (B) strict than the Model Law

A. Modalities of Control Stricter Than Those of the Model Law 1)Departure from the Principle of the Exclusivity of the Annulment Procedure As Means of Action Against the Award  Some countries allow a review on the merits of the Award, with a possibility of a waiver thereof by the parties: England; Australia; Libya; New Zealand  Others allow a review on the merits of the Award, without a possibility of a waiver thereof by the parties: Canada and Paraguay 2)Departure from the Principle of the Exclusivity of the Annulment Jurisdiction of Courts at the Seat of the Arbitration  Extra-territorial Jurisdictional Rule, i.e., the power given to national courts to exercise jurisdiction over the annulment of arbitral awards rendered outside their territory still exists in certain countries: Courts of Bangladesh and Pakistan  Uncertainty as to whether provisions on annulment of Awards only apply to awards rendered within national boundaries: Brazil and Kenya 3)The Adoption of More Rigorous Annulment Grounds  By States purportedly inspired by the Model Law: Iran, Egypt, Brazil, Malta, Mauritius, Singapore, New Zealand, Finland, Oman, Thailand, Peru; Poland and Zimbabwe  By States that are not based on the Model Law: China, Saudi, and US Case Law

B. Modalities of Control Less Strict Than Those of the Model Law 1)Adoption of Annulment Grounds less Rigorous Than Those of the Model Law France (and countries that have essentially recopied the arbitration provisions of the French Code of Civil Procedure), Sweden, Belgium and Uruguay 2)Discretionary Power to Judges to Refuse to Annul Awards Falling Under One of the Annulment Grounds Article 34 (2) of the Model Law Israel and British Columbia (Canada) 3)The Exclusion of Annulment Actions Possibility for parties to waive their right to an annulment action: Switzerland, Tunisia, Belgium and Sweden

CONCLUSION

Thank you for your time Bertrand Derains