Commentaries on the Convention
on Annex I | Annex II |Annex III
I. The European Convention providing a Uniform Law on Arbitration which was prepared, within the framework of the Council of Europe, by the Committee of Experts on Arbitration set up for this purpose by the European Committee on Legal Co-operation was opened for signature by the member States of the Council of Europe on 20th January 1966.
II. The text of the explanatory memorandum by the Committee of Experts is presented here as amended and completed by the Committee on Legal Co-operation.
1. According to the decision by the Ministers' Deputies taken at their 69th meeting (March 1959), the Committee of Experts were instructed to prepare a European Convention providing a uniform law on arbitration to take the place of the domestic laws of the Contracting States. It was agreed that the Convention might contain a clause enabling each Contracting Party to declare that it will apply the uniform law only in international relations with the other Contracting Parties.
2. In compliance with Recommendation 156 (1958), adopted by the Consultative Assembly on 17th January 1958, and the decision of the Ministers' Deputies mentioned above, the Committee of Experts based their work on the draft uniform law prepared by the International Institute for the Unification of Private Law, Rome, as amended by the Assembly's Legal Committee.
The Committee of Experts have therefore drafted a Convention designed to unify the municipal laws of member States.
3. The Convention contains no clause authorising a Contracting Party to declare that it will apply the uniform law only in international relations with the other Contracting Parties. Such a clause had been contemplated to meet the wishes of the United Kingdom, whose delegation had declared that they would find it extremely difficult to adopt a uniform law on arbitration in internal relations. Since the United Kingdom subsequently withdrew from the Committee of Experts, and no other delegation has asked for the inclusion of such a provision, the Committee of Experts felt able to dispense with it.
4. The texts adopted comprise: the Convention, Annex I containing the uniform law, Annex II containing a list of admissible reservations and Annex III giving the text of the declaration which the Contracting Parties are authorised to make.
5. In the Convention, Contracting Parties undertake to incorporate the provisions of the uniform law in their legislation. The Convention also contains, besides the usual final clauses, articles enabling the uniform law to be incorporated in domestic legislation.
6. The uniform law deals with the arbitration agreement, arbitrators, arbitral proceedings, awards, enforcement of awards, remedies at law and compromises entered into before arbitrators as provided for in certain national legislations.
The Committee of Experts have based their work on the various legislations under consideration and on practical experience; they have adopted the solutions most favourable to arbitration, while taking into account diametrically opposed systems now in force.
7. Some questions have been omitted from the uniform law, for example: capacity to conclude an arbitration agreement, the qualifications of an arbitrator, counter-claims, the powers of investigation of an arbitral tribunal, the provisional execution of awards, arbitration costs and arbitrators' fees, the jurisdiction of judicial authorities called upon to intervene. The Committee of Experts thought that these questions, some of which belonged essentially to the province of civil law or civil procedure, should be dealt with by each Contracting Party as necessary.
8. Since Switzerland has been represented on the Committee of Experts only since her accession to the Council of Europe, i.e. since the tenth meeting (October 1963), the Swiss delegation reserved their position on those provisions of the uniform law the substance of which had not been examined at the meetings that they had attended. The Swiss delegation also drew the Committee's attention to the difficulty for Switzerland of adopting a uniform law, since rules of procedure in that country were within the jurisdiction of the cantons.
9. In the Committee's opinion, the first paragraph of Article 1 of the Convention is; to be interpreted as follows:
(a) The Contracting Parties undertake to reproduce the articles of the uniform law verbatim in their legislation.
(b) The articles of the uniform law should be reproduced in the same order as in the law itself. However that order may be varied where the requirements of national legislation make this imperative, for example, in the case of a Contracting Party whose legislation governing enforcement occurs in a code other than that relating to procedure.
(c) The articles taken from the uniform law may contain references to other provisions of municipal law where such references are intended solely to ensure the application of the uniform law.
(d) Countries whose language is not English or French will translate the articles of the uniform law into their national language. Such translations must be faithful to the text of the articles; however, technical terms may be translated by equivalent terms appropriate to the legal system of the country in question.
(e) Where a Contracting Party avails itself of a right or reservation with regard to an article of the uniform law, it may make such changes in other articles of the law as are entailed by the exercise of that right or reservation.
10. Since the uniform law does not cover all questions relating to arbitration, the Contracting Parties should be free to take the requisite steps to regulate the whole subject. The supplementary provisions involved will be mainly such as are required to regulate the matters mentioned in paragraph 7 of the General Considerations. The last clause of paragraph 2 of Article 1 indicates that such provisions must be consistent with the uniform law. Thus a Contracting Party could not, where the uniform law is silent, introduce any provision which would have the effect of restoring the abandoned distinction between arbitration clauses and other arbitration arrangements by establishing different systems for them.
11. Many legislations do not allow disputes on certain subjects to be submitted to arbitration, even where the dispute may be the subject of a compromise (Article 1 of the uniform law). This is the case for instance with industrial or commercial agreements, leases and, in the case of States which are Parties to the Convention of 19th May 1956 on contracts for the international transport of goods by road (C.M.R.), disputes subject to that Convention (Article 31, paragraph 1; Article 41, paragraph 1). In other cases, disputes in respect of which it is permissible to compromise may be submitted to arbitration, but the arbitration is then governed by special rules. This is so in various countries with regard to disputes resulting from certain insurance contracts or stock exchange transactions. Paragraph 3 makes allowance for the need to maintain such rules.
12. Since the Convention covers both civil and commercial disputes, provision is made for the right to limit the application of the uniform law to commercial questions. Such a restriction is in line with that permitted under the Geneva Protocol of 24th September 1923, the Geneva Convention of 26th September 1927 and the New York Convention of 10th June 1958.
The terminology used in paragraph 4 is that of the above-mentioned New York Convention (Article 1, paragraph 3).
13. At present the laws of certain countries prohibit aliens from being arbitrators. Article 2 puts an end to such discrimination. It should, however, be mentioned that under Article 14, paragraph 1, of the uniform law the parties to an arbitration agreement are entitled to exclude certain categories of persons from being arbitrators.
14. This provision is necessary because of the differences between the legal and administrative systems of different countries.
15. This article meets the wishes of certain delegations who said that the legislation of their countries laid down or might lay down special rules for the representation of parties and assistance to them.
16. When Articles 28 and 30 of the uniform law were discussed some delegations pointed out that the periods laid down in Article 28, paragraph 1, and Article 30, paragraphs 1 and 3, should run only from the moment when the interested party serves notice of his intention to apply for enforcement of the award. Article 5 accordingly allows an option to the Contracting Parties.
17. Under the uniform law an arbitral award cannot be enforced until the competent authority has apposed the enforcement formula to it. However, the technical term enforcement formula" used in Article 29, paragraph 1, of the uniform law does not fit all legislative systems. For this reason Article 6 of the Convention provides that a Contracting Party may bring the procedure for the enforcement of an award into line with the requirements of its municipal law, it being understood that the principle of preliminary control from the point of view of ordre public and susceptibility of the dispute to arbitration is in no case affected.
18. Article 29, paragraph 1, of the uniform law provides than an award is enforceable, only when it can no longer be contested before arbitrators. At present, in certain legislations, the arbitral tribunal may rule that an initial award is enforceable notwithstanding appeal, while in other legislations, it is the judicial authority which may order provisional enforcement of the award where certain conditions are fulfilled.
Article 7 of the Convention makes it clear that Article 29, paragraph 1, of the uniform law was not intended by the Committee of Experts to preclude the provisional enforcement of awards still appealable before arbitrators, the matter being omitted from the uniform law so that it can be regulated by the Contracting Parties.
19. Under paragraph 1 of this article the Contracting Parties may avail themselves of the reservations expressly listed in Annex II. These reservations clearly reduce the scope of unification to some extent, but it must not be forgotten that harmonisation of law between European States is a complex and difficult matter especially when the provisions to be unified are bound up with differing legal concepts of long standing.
20. In arbitration, many rules are closely connected with other provisions in codes of civil procedure. As a result of the divergences between the different legal systems under consideration, the Committee of Experts had to choose between abandoning any attempt to unify certain rules and framing provisions in accordance with the opinion of the majority of delegations, while allowing any countries unable to adopt them to derogate from them by means of reservations. In each case the Committee of Experts were guided by the desire to keep down the number of provisions qualified by reservations and to regulate the subject as completely as possible, at least with regard to the points they considered essential.
21. It is desirable that the Contracting Parties should specify as fully as possible the reservations of which they intend to avail themselves. Paragraph 2, by making it possible to withdraw reservations at any time, aims in the future to reduce divergences between legislations which have incorporated the uniform law. But it is to be hoped that the Contracting Parties will make only sparing use of the reservations.
22. The Committee of Experts were of the opinion that the uniform law should apply both to purely national arbitrations and to arbitrations which, while subject to the municipal law of a Contracting Party, had an international character. They thought however that it might be undesirable to interfere with existing conventions or to hinder the conclusion of new conventions which might take arbitration further in special questions and at international level. Article 9 gives expression to these ideas.
23. However some delegations said that their countries might prefer to give the uniform law priority over other international conventions. They thought that this would do more to achieve the aim of the uniform law, which was to eliminate conflicts of laws by means of identical rules governing arbitration, irrespective of its national or international character and of the country in which it takes place.
Article 9 meets the wishes of these delegation, by permitting the Contracting Parties to make use of the right provided for in Annex III.
24. It was agreed that texts to be communicated to the Secretary General of the Council of Europe could be communicated in their original language. The Committee of Experts expressed the wish however that they should be accompanied wherever possible by a translation into one of the official languages of the Council.
25. The Committee of Experts intended the words "will govern" to express the idea that, in addition to texts adopted in order to harmonise existing legislation with the uniform law, any subsequent changes in national legislation in the context of commitments under the Convention should also be communicated.
Articles 11, 12, 13, 14 and 15
26. These articles are in conformity with the model final clauses adopted by the Committee of Ministers of the Council of Europe.
Uniform Law (Annex I)
27. The uniform law applies only to arbitration based on the will of the parties. "Compulsory arbitration", i.e. arbitration imposed by law to settle certain disputes over particular matters, remains in general outside the provisions adopted for the uniform law.
28. The use of the term "arbitration agreement" does away with the distinction made in some legislations between arbitration (clauses compromissoires) and other arbitration arrangements (compromis).
The term will henceforth be used in place of both those expressions.
29. The criterion of the compromise was chosen as being more precise than the notion of a "rights of which the parties have the free disposition" since, in the view of some experts, use of this expression would have necessitated enumerating the rights in question.
It should however be borne in mind that under Article 1, paragraphs 3 and 4, of the Convention, the Contracting Parties have the right to exclude disputes arising in certain specific matters from the scope of the uniform law, even where they may be settled by compromise.
30. In the Committee's opinion the words "specific legal relationship" are equivalent to the words "defined legal relationship, whether contractual or not" in Article II, paragraph 1, of the United Nations Convention on the recognition and enforcement of foreign arbitral awards, concluded at New York on 10th June 1958. The term "specific legal relationship" is intended to cover inter alia the whole range of obligations arising from a contract between the parties or of legal relations of a particular nature.
31. The Committee of Experts also agreed that, where a person subscribes to articles of a corporate body which include a provision making any disputes subject to arbitration, this implies recognition of the existence of an arbitration agreement.
Similarly, an arbitration clause in a will may be treated as an arbitration agreement, as the result either of a court decision or of a legal provision.
32. The question of what "documents" may be regarded as binding on the parties and as showing their intention to have, recourse to arbitration is left to the discretion of the courts. The Committee of Experts expressed the view that an exchange of letters, telegrams or teleprinter messages might constitute a "document" within the meaning of Article 2. Similarly, an arbitration agreement drawn up by a broker acting as agent for both parties comes within the scope of paragraph 1 of this article.
33. A reservation may be made to paragraph 1 of this article [Annex II, paragraph (a)].
34. Paragraph 2 is intended to cover "institutional" arbitration, i.e. arbitration by a permanent body. It is understood that in the event of divergence between mandatory rules laid down in the uniform law and provisions of a particular arbitration procedure the former shall prevail.
One delegation was unable to agree that mere reference by the parties to an arbitration agreement should mean that the latter was considered as included in the arbitration convention. They claimed that under Article 2, paragraph 2, of the uniform law, an arbitration agreement would be applicable not only in relations between businessmen, but also in relations between businessmen and non-businessmen, although these last were often unaware of the wording and application of arbitration clauses of whose real scope they were ignorant, and that this situation was likely to result in certain abuses. The problem raised by reference to an arbitration agreement was tantamount to an interpretation of the arbitration convention, which in the final analysis was a matter for the Courts.
35. This article was dictated by the desire to ensure observance of the principle of equality between the parties in the appointment of arbitrators. It reproduces the text of Article 6 of the draft uniform law prepared by UNIDROIT.
As explained in the report accompanying the draft, "the Article deals only with the avoidance of an arbitration agreement in a more practical case, that is, where the equal rights of the parties have been interfered with in the clearest possible way: where one party has been given greater rights with regard to the constitution of the arbitral tribunal than his opponent, for example, where one party has the right to nominate two arbitrators and his opponent has the right to nominate only one". Furthermore, "the terms of Article 3 do not in any way raise the question of lack of consent; this question has not at any time been considered by the drafters, who have left it for the ruling of municipal laws".
36. Paragraph 1 embodies the fundamental principle that, where there is a valid arbitration agreement, courts of law have no jurisdiction in the dispute which is the subject of the agreement.
37. The Committee of Experts did not think they should go into the question of when a plea of no jurisdiction must be entered with the judicial authority, since this matter was governed by the rules of judicial procedure. The Committee of Experts noted however that according to most legislations it could be entered only in limine litis.
The Committee of Experts also decided not to express an opinion as to whether a ruling by the judicial authority on such a plea should be binding on the arbitrators.
38. The words "is not valid or has terminated" were chosen to avoid unduly technical terms which it might not be possible to incorporate in the legislation of some countries.
39. Paragraph 2 does not prejudge the question whether a court has the power to order preservation or interim measures before or during arbitration proceedings. This matter is left to the national legislation of each Contracting Party.
40. This article lays down the principle of an uneven number of arbitrators.
41. The regulations of many arbitral institutions are already based on this principle, but it is new to the laws of most member States of the Council of Europe.
42. The principle of an uneven number embodied in the uniform law is dictated by the desire to avoid, in the majority of cases, the difficulties that may arise where votes are divided and to overcome the drawbacks of the diversity of solutions to the problem found in national laws. It obviates cases of invalidation of the arbitration agreement and any need to resort to "a chief arbitrator", "outside arbitrator" or "umpire".
43. Paragraph 2 shows that an uneven number is compulsory only at the stage of arbitration and not when the arbitration agreement is concluded. Thus an agreement providing for an even number of arbitrators is not void ipso facto but an action may be brought for the setting aside of an award made by an even number of arbitrators on the ground that the arbitral tribunal was irregularly constituted. However, under Article 25, paragraph 4, such an action may not be brought if the party invoking the irregularity had knowledge of it during the arbitration proceedings but did not raise the matter before the arbitrators.
It further results from paragraph 2 that the fact that an arbitration agreement provides for an even number of arbitrators, or that an arbitration award was made by an even number of arbitrators, if invoked in another Contracting State, cannot be regarded as being contrary to ordre public.
44. A reservation may be made to the first two paragraphs of this article [Annex II, paragraph (c)].
45. The words "or subsequently thereto" apply to any arrangement, made after the conclusion of the arbitration agreement, by which the parties appoint arbitrators or entrust their appointment to a third person.
46. The words "as the case may be' at the end of the article are intended by the Committee of Experts to express the idea that the number of arbitrators to be appointed by each party should be determined by the total number of arbitrators which the arbitral tribunal is to comprise.
47. The rules adopted are in no way intended to establish a system whereby an arbitrator appointed by one party should be regarded as that party's representative. Article 6 provides only for the right of appointment, and it goes without saying that the arbitrators, however appointed, must perform their duties in the same way as judges, i.e. with independence and impartiality.
48. Article 7 - together with Articles 8 and 9 - lays down in detail the procedure to be followed in constituting an arbitral tribunal and instituting arbitration proceedings in cases where the parties have not agreed on the appointment of the arbitrators.
49. The Committee of Experts thought it best to leave the methods of notification to national legislation or to stipulations of the parties. Different countries have very different ideas and customs regarding the form of such notices, which may range from ordinary letters to service by process-server. In the Committee's opinion it would be desirable to reach agreement that notice by registered letter shall be deemed sufficient.
50. Under paragraph 4, notification of the appointment of an arbitrator extinguishes the right to withdraw the appointment; it follows that forfeiture of this right does not depend on previous acceptance of his office by the arbitrator.
This paragraph 4 does not prevent the party which appointed the arbitrator from exercising his right to challenge him under paragraph 2 of Article 12, if after the appointment has been notified the party becomes aware of a ground for challenge.
51. The term "appointed" used in this article and the term "appointment" used elsewhere are employed in all cases where the arbitrator or arbitrators are chosen by the parties or by a third person at their request. On the other hand, the word "nomination" has been used where the choice is to be made by the judicial authority or by the arbitrators already appointed.
52. The question whether decisions taken by judicial authorities in pursuance of Article 8 are appealable is left to national legislation. This applies both to the actual judicial proceedings and to the form of the decisions.
53. The words "if the parties have not provided otherwise" in paragraph 1 imply that the parties may also ask a third person to appoint the arbitrator who is to be president of the arbitral tribunal.
54. In the Committee's view, failure of the arbitrators to agree may be recorded by the arbitrators in a minute or in a communication.
55. The president of the arbitral tribunal referred to in this article is not to be regarded as a "chief arbitrator" or "umpire". He is appointed because of the "odd number" requirement, and his functions and rights are the same as those of the other arbitrators, subject to the provisions of Article 15, paragraph 2, and Article 22, paragraph 2.
56. This article deals with the replacement of arbitrators; this should not be confused with challenge, which is the subject of Articles 12 and 13.
57. In the Committee's opinion, national legislation is free to provide that arbitrators who have accepted their office may withdraw only for grave reasons which must be approved by the judicial authority.
58. By the use of the words "for a reason of law" legal incapacity of an arbitrator is covered by Article 10, paragraph 1; the same paragraph applies to any cause inherent in the person of the arbitrator which precludes him from acting.
It was agreed that the words "does not carry it out" also cover cases where an arbitrator delays unduly in discharging his office.
59. The last sentence in paragraph 1 of this article states that, where the arbitrator or arbitrators are named in the arbitration agreement, the agreement shall terminate ipso jure. The Committee of Experts considered that in such a case the parties' recourse to arbitration would have been prompted solely by the personalities of the arbitrators named in their agreement. It should be noted however that under paragraph 3 the parties may derogate from this rule, to which, moreover, a reservation is available [Annex II, paragraph (d) ].
60. Paragraph 2 applies in cases where a party requests the replacement of an arbitrator appointed by himself but the other party contests the need for replacement.
61. A judicial decision dismissing an application to replace an arbitrator for a reason of law has been held in the great majority of member States to be res judicata. It consequently precludes the party concerned from invoking that reason of law as a ground for setting aside an award on the basis of Article 25, paragraph 2(f).
62. This article may be applied by analogy to the winding up of a company or other corporate body which has concluded an arbitration agreement.
63. This article is concerned with the grounds on which arbitrators may be challenged; these grounds are distinct from the reasons for replacing arbitrators referred to in Article 10, paragraph 1, as well as from the reasons for the exclusion of certain categories of persons by agreement provided for in Article 14.
64. Since, as mentioned in paragraph 47 above, the Committee of Experts considered that arbitrators must have the impartiality and independence of judges, they thought it best to define the grounds for challenging arbitrators purely and simply by reference to the grounds for challenging judges laid down in municipal law.
65. Paragraph 1 deals with the first stage of the procedure: the ground of challenge must be brought to the notice of the arbitrators and, where applicable, of the person or body that appointed the arbitrator challenged. The arbitrator may resign. The person or body that appointed him is not required to take any decision on the challenge but may, where appropriate, help to smooth out the difficulties that have arisen.
Any party becoming aware of the existence of a ground for challenge, who omits to challenge the arbitrator concerned as soon as he is in a position to do so, loses the right of challenge. The decision whether or not the party has brought forward the ground of challenge within the correct period shall either be decided according to municipal law or shall lie with the judicial authority before whom the matter is brought, in accordance with paragraph 2 of Article 13.
66. In the Committee's opinion, the form and method of communication of the ground of challenge will be governed by the municipal law of each Contracting Party in accordance with Article 1, paragraph 2, of the Convention.
67. The question whether a ground of challenge that was not put forward, or was put forward after a delay during the arbitration procedure, may be invoked as a ground for setting aside the award will be discussed in the comments on Article 25 and on the reservation relating to Article 25, paragraph 4 (paragraphs 125 and 168 below).
68. The two time-limits of 10 days mentioned in paragraph 2 were laid down to prevent the use of delaying tactics by either party.
69. The Committee of Experts thought that, when the judicial authorities are asked for a ruling on a challenge, the proceedings should be expeditious and summary, since the arbitration is suspended while they are in progress. It might therefore be desirable that the decision of the judicial authority should not be appealable. These questions are however left to municipal law.
70. It may be noted that where the judicial authority upholds a challenge it is not responsible for appointing a new arbitrator. This provision differs from that of Article 10, which deals with the replacement of an arbitrator for reasons other than challenge.
71. Article 13 may be the subject of a reservation [Annex II, paragraph (f) ].
72. This article deals with "relative" incapacity due to exclusion by the parties, in the arbitration agreement, of certain categories of persons from being arbitrators. This is distinct from incapacity in pursuance of legal provisions. As stated in paragraph 7 of the General Considerations, the question of incapacity is not regulated in the uniform law.
73. This article may be the subject of the same reservation as Article 13 [Annex II, paragraph (f) ].
74. Paragraph 1 of this article states the right of the parties to decide on the rules of the arbitral procedure and on the place of arbitration. However, this right ceases, at least in principle, once the arbitrators have accepted their office. The reason is that the arbitrators can be bound only by conditions already laid down at the time they accept office.
75. The rules of the arbitral procedure prescribe time-limits for the various stages of the procedure. These time-limits should not be confused with certain others, particularly with the period within which the award must be made in pursuance of Article 19.
76. This article embodies two fundamental principles of arbitral procedure, namely:
(a) a full hearing in the presence of the parties, and
(b) equality of the parties.
77. The Committee of Experts interpreted paragraph 1 as obliging the tribunal to give each party an opportunity to become acquainted in good time with the case presented, And documentary evidence produced by the other party.
78. It was agreed that the term "oral proceedings" in paragraph 2 did not exclude exchanges of written submissions and memorials.
79. The words "may validly be summoned" in the second sentence of paragraph 2 are intended to make it clear that the method of summons provided for is a minimum method in the absence of any agreement between the parties on some other method of summons, such as a simple exchange of letters; the words do not therefore exclude a more formal method of summons.
80. Paragraph 4 lays down the right of the parties to be represented and assisted; it may be recalled that, under Article 4 of the Convention, the Contracting Parties may determine the conditions to be fulfilled by persons empowered to represent or assist parties before an arbitral tribunal.
81. The object of this provision is to prevent a party properly summoned from holding up the arbitration proceedings by failing to appear or to present his case.
82. The Committee of Experts thought it preferable to refer to "legitimate cause" rather than force majeure, which would have a too restrictive meaning in this content.
83. Under paragraph 1 of this article the arbitral tribunal may rule, subject to correction by the judicial authority, on any plea concerning its jurisdiction to hear a case.
84. The question has arisen whether the arbitrators must declare that they have no jurisdiction if they consider that the contract of which the arbitration agreement forms part is void or whether, on the other hand, they should settle the question of their jurisdiction according to whether the arbitration agreement is affected by the same defect as that which would invalidate the contract of which it forms part.
Rather than make no express ruling on this question and leave its solution to the legislation or jurisprudence of each Contracting Party, it was considered preferable to adopt the theory of the autonomy of arbitration agreements. The controversy to which this theory gives rise may induce certain Governments to object to the wording of paragraph 2, Article 18, and it was therefore necessary to provide for a reservation on this subject, which will be found in Annex II, paragraph (e).
85. The object of paragraph 3 is to protect the regular course of the arbitration proceedings; however, it ceases to be applicable if the arbitrators have ruled that they have no jurisdiction, since the arbitral procedure cannot in that case give rise to an award on the merits. Because of this situation it is provided that in that event the judicial authority may, at the request of one of the parties, verify whether the arbitral tribunal's ruling that it has no jurisdiction was well-founded.
86. It is pointed out that no particular form is stipulated for the ruling of the arbitrators.
87. The uniform law does not answer the question whether the parties may apply to a judicial authority to establish the validity or invalidity of the arbitration agreement before the arbitral procedure has been opened or while it is in progress; this question is left to national legislation.
88. Under paragraph 4, the appointment of an arbitrator cannot be construed as tacit acceptance of the jurisdiction of the arbitral tribunal.
89. The Committee of Experts adopted a more flexible system than that of placing the arbitrators under the obligation of making an award within a specified time. Any fixed period would tend to be either too long or too short according to circumstances.
90. Under paragraph 1, the parties have the right to settle the period within which the award is to be made or provide for a method according to which the period is to be settled. For instance, the parties might agree that if the arbitral tribunal delays unduly in making the award a third person - such as a permanent arbitral institution - may be empowered to stipulate a period within which the arbitrators are to make the award. If the parties have provided for any such method, they can no longer avail themselves of the provisions of paragraph 2.
For the same reasons as those given in paragraph 74, the right conferred on the parties by paragraph 1 lapses when the arbitrators accept office.
91. The interval of six months laid down in paragraph 2 for bringing the matter before the judicial authority is intended to prevent premature recourse to it.
92. The provisions of paragraph 2 do not, however, prevent the judicial authority, at the request of a party, from prolonging the period stipulated by such authority if such prolongation is made necessary by unforeseen events such as a delay in the arrangements for, or execution of, rogatory commissions.
93. It follows from paragraph 3 that, if the award is not made within the relevant period, the arbitration agreement does not terminate-only the office of arbitrator. That office cannot be extended except by agreement between the parties; thus it cannot be extended by the judicial authorities at the request of one party.
94. The arbitration agreement nevertheless terminates by virtue of paragraph 4 if the arbitrators are named in it. This rule corresponds to the rule in Article 10, paragraph 1, and is subject to the same reservation.
95. Under Article 1, paragraph 2, of the Convention the Contracting Parties may make provision in their legislation for cases in which the period allowed to the arbitrators can be interrupted (replacement of an arbitrator, appeal to the judicial authorities in cases where they are requested to intervene etc.).
96. Under this provision an arbitral tribunal may give separate rulings on the various points of an application in the form of partial awards. It can, for instance, give a ruling on whether the application is well-founded and decide at a later stage the amount to be paid. The word "final" indicates that the arbitrators may not reconsider the points in dispute already settled. All awards must be made within the period stipulated in Article 19.
On the other hand, if the arbitrators were to make a partial award against the wishes of the parties, they would be acting ultra vires, and the award might be set aside on that ground.
97. Failure by the arbitrators to give a ruling subsequently on those points in dispute left unsettled in the partial award may amount to a refusal to carry out their office (Article 10) or constitute a ground for setting aside the award [Article 25, paragraph 2 (c)].
98. This article establishes the principle of observance of the rules of law. The words "except where otherwise stipulated" leave the parties free to provide that the arbitrators shall make their awards as amiables compositeurs.
In case of amiable composition the arbitrators are dispensed from observing the rules of substantive law, with the exception of those designed to ensure ordre public.
99. This article may be the subject of a reservation [Annex II, paragraph (g)].
100. The provisions of paragraph 1 are presented in two separate sentences in order to make it clear that the provisions of the first sentence are mandatory, while those in the second sentence are procedural.
101. The obligation on the arbitrators to take part in the deliberation does not necessarily mean that their physical presence is required; for instance, the deliberation might take place by correspondence. All the arbitrators must take part in the voting.
102. The parties may agree on a majority higher than the absolute majority of votes prescribed in paragraph 1, i.e. more than half the votes. Paragraph 1 is mandatory in so far as it prohibits the parties from stipulating that the award may be made by a minority of votes.
103. However, under paragraph 2 and in keeping with the rules of certain permanent arbitral institutions, the parties may stipulate that the president shall have a casting vote when a majority cannot be obtained.
104. A Contracting Party may reserve the right to regulate as it sees fit the case where no majority can be obtained [Annex II, paragraph (h)],
105. An award must record the inability or unwillingness of an arbitrator or arbitrators to sign, but need not state the reasons. The majority mentioned in paragraph 4 need not consist of the same arbitrators as those who made the award by majority vote.
106. Paragraph 5 specifies the minimum Particulars required to identify the award.
107. Under paragraph 6 the arbitrators must state the reasons for their award even if the parties have dispensed them from doing so. This rule is dictated by a number of considerations. In the first place the arbitrators must show that their ruling is well-founded. Furthermore, a statement of reasons seems essential in cases where the award is appealable before another arbitral tribunal. Finally, the award must be drawn up in such a way as to enlighten the judicial authorities in the event of proceedings for setting aside or enforcement.
108. This provision may however be the subject of a reservation [Annex II, paragraph (i) ]. Some delegations thought that the arbitrators should not be obliged to state reasons for their award unless the parties so stipulated. Others were of the opinion that, as a general rule, reasons should be stated for the award, but that parties might by agreement release the arbitrators from this obligation. The system adopted might determine in what cases the absence of reasons should constitute a ground for setting aside under Article 25, paragraph 2 (i). The reservation admissible in regard to Article 22, paragraph 6, also allows for derogation from the above-mentioned provision of Article 25.
109. The uniform law does not specify the time at which the award shall be deemed to have been made, the arbitrators thereby being discharged. This question has been left to national legislation.
110. The form of notification of the award is not regulated in the uniform law; the same applies to information of the deposit of the award.
111. The expression "president of the arbitral tribunal" includes a sole arbitrator. It was agreed that notification of the award need not be made personally by the president but might be made under his responsibility in whatever way he thought appropriate.
112. Paragraph 2 is concerned with the deposit of the award. The registry of a court of law was considered the most appropriate place for preserving the original of the award. Under Article 3 of the Convention, a Contracting Party may define what it means by the registry of the court. A Contracting Party may also reserve the right [Annex II, paragraph (j) ] to prescribe a place of deposit other than the registry or even not to make deposit compulsory in its law.
113. Article 24 deals with the authority as res judicata of the award. This provision is intended to put an end to controversy over the possible effects of an arbitral award.
114. The conditions to be met by the award in order to acquire that authority are the same as those laid down to render an award enforceable: it must not be contrary to ordre public, it must relate to a dispute susceptible of settle-merit by arbitration, it must have been notified, and it must no longer be appealable before arbitrators.
115. This article may be the subject of a reservation [Annex II, paragraph (k) ].
116. Paragraph 1 should be considered one of the fundamental provisions of the uniform law. Under this paragraph, which is mandatory in character, an application to set aside is the only form of remedy against an award before the judicial authority. This clause, therefore, prohibits the Contracting Parties from retaining or incorporating in their legislation provisions whereby an award would be, for instance, appealable before the judicial authority. Moreover, any stipulations by which the parties to an arbitration agreement recognised such a right would have to be considered void. The parties may, of course, provide in the arbitration agreement for appeal to another arbitral tribunal.
117. Paragraphs 2 and 3 give an exhaustive list of the grounds for setting aside an arbitral award.
118. Sub-paragraph 2 (e) provides explicitly that an incomplete award may be contested by way of an application for setting aside. Nevertheless, this cannot be done unless the points settled and the points not settled are absolutely inseparable from one another.
119. Sub-paragraph 2 (g) gives two distinct grounds for setting aside. The first clause provides that an award may be set aside if there has been some infringement of the rights of the defence; this ground is connected in a general way with the provisions of Article 16. The second clause relates to disregard of other mandatory rules of the arbitral procedure.
120.The grounds for setting aside listed in paragraph 3 were placed together because of their particular nature; the period within which they must be put forward starts at a different time from that prescribed for the grounds listed in paragraphs 2 (c) to (j). (See Article 28, paragraph 3.)
121. In paragraph 3 (a), the French expression fraude includes dol.
122. The word "evidence" in paragraph 3 (b) includes all forms of evidence: exhibits or documents, oral testimony etc. The words "declared false" refer to a ruling by a judicial authority that the evidence is false, while the term "recognised as false" relates to recognition of the evidence as false by the party who submitted it or in whose favour it operated.
123. In sub-paragraph (c) the words "document or other piece of evidence" cover all forms of evidence, including corporeal objects discovered as the result of a visit to the scene, with the exception of evidence obtained by the hearing of a person (witness, expert or party). This limitation follows from the last clause.
124. The Contracting Parties may make a reservation derogating from sub-paragraph (c) [Annex II, paragraph (1) ].
125. The purpose of paragraph 4 is to limit the possibility of setting aside in cases where a party is presumed, from his behaviour during the arbitration proceedings, to have waived his right to invoke certain defects on the basis of which he may subsequently wish to have the award set aside. This paragraph may however be the subject of a reservation [Annex II, paragraph (m)].
126. Paragraph 5 is intended to prevent any misunderstanding or difference of interpretation with regard to the scope of paragraph 2 (f). Where judicial proceedings have been instituted tinder Articles 13 and 14 to decide as to the validity of a ground of challenge or incapacity, there can be no justification for setting aside an award on that ground. In addition, the Committee of Experts thought that such grounds, even where they did not become known until after the award had been made, would on no account justify setting the award aside.
127. The reservation relating to Articles 13 and 14 also allows derogation from Article 25, paragraph 5 [Annex II, paragraph (f)].
128. The purpose of this article is to ensure that the whole of an award shall not be set aside when the grounds for setting aside affect only part of it. However, a part of an award cannot be set aside unless it is separable from the rest of the award.
129. The purpose of paragraph 1 is to compress the procedure for the setting aside of an award by prohibiting a party who intends to invoke a number of grounds for setting aside from instituting new proceedings based on different grounds if a first application has failed.
130. Paragraph 2 eliminates the disadvantages of parallel appeals before an arbitral appeal tribunal and, in the form of an application to set aside, before the judicial authority. It goes without saying that an application to set aside can be justified only if it is directed against a final award.
131. The right of the Contracting Parties under Article 7 of the Convention does not entitle them to provide in their legislation that an arbitral award "enforceable notwithstanding appeal" to another arbitral tribunal may be set aside while it is still appealable or while the appeal is still pending.
132. The relatively short time-limit was laid down in order not to leave the party wishing to invoke the award in uncertainty as to its validity. It may be recalled that under Article 5 of the Convention each Contracting Party may treat the word "notified" as meaning either notification of the award to the parties by the president of the arbitral tribunal or service by one party on another party.
133. An action to set aside an award on the ground of ordre public or on the ground that the dispute was not susceptible of settlement by arbitration is not subject to any time-limit. This is in harmony with Article 24, which provides that an award contrary to ordre public or one made in a matter that was not arbitrable can never acquire the authority of res judicata.
134. Paragraph 2, for reasons of justice, provides that the defendant in an application to set aside may himself apply for the award to be set aside, even if the prescribed period has expired. This paragraph is mainly intended for cases where one party requests that the award be partially set aside, the other party then being able to apply for other parts of the award to be set aside.
135. It is clear that the beginning of the Period of three months allowed for making an application for setting aside based on one of the grounds referred to in paragraph 3 cannot be the same as for the other grounds for setting aside. The considerations which led the Committee of Experts to provide for a second period, fixed at five years and starting from the date of notification of the award, are the same as those mentioned in paragraph 132.
136. The term exequatur was not used since it is too technical and in some countries necessitates oral proceedings in the presence of the parties; the expression "enforcement formula", on the other hand, allows for the institution of proceedings on application and at the same time fits the situation in other countries where the procedure of exequatur is unknown in connection with arbitral awards.
137. The enforcement formula is granted on application, i.e. without a hearing of the parties, by the "competent authority". Since in some countries the authority now competent to authorise the enforcement of arbitral awards is not a judicial authority, the Committee of Experts did not think they should stipulate the nature of the authority. This can be determined by the Contracting Parties in accordance with Article 3 of the Convention.
138. It is apparent from the text of paragraph 1 that an arbitral award may be enforced only when it can no longer be contested before arbitrators. Nevertheless, under Article 7 of the Convention the Parties may in their law make Provision for and regulate the provisional enforcement of awards which are still appealable before arbitrators.
139. In the Committee's opinion, paragraph 2 does not preelude the competent authority from examining other points of pure form, besides the grounds for refusal expressly laid down in that paragraph.
140. It was recognised that, as with appeal against an enforcement order (Article 30), appeal against refusal of an application for enforcement must always be made to the judicial authority having jurisdiction to hear such an appeal irrespective of what authority was responsible for deciding the application for enforcement.
The time-limit and the formalities prescribed for this appeal are to be determined by each Contracting Party in accordance with Article 1, paragraph 2, of the Convention.
141. Paragraph 1 deals with appeal against an enforcement order. The appeal must be made within one month. The date from which this is reckoned will depend on the choice made by the Contracting Parties under Article 5, sub-paragraph 2, of the Convention.
142. For most legislations paragraph 2 involves a very important innovation, in that it provides for the compulsory joinder of proceedings where a party wishes to contest both the enforcement order and the award itself.
By concentrating legal remedies in the same judicial authority at this stage, the Committee of Experts intended to eliminate here too the disadvantages resulting from the institution of parallel actions and also to accelerate appeal against the award itself and reduce the opportunities for delaying tactics offered by the multiplicity of legal remedies.
143. Under paragraph 2, the right of a party contesting an enforcement order to apply to have the award set aside lapses with the expiration of the period stipulated in Article 28. Applications to set aside an award based on grounds listed in Article 25, paragraph 2 (a) and (b) for the institution of which no time-limit is laid down in Article 28, must also, on pain of being barred, be joined with the appeal against the enforcement order.
144. In case of joinder the time-limit is always the one month stipulated in paragraph 1. In certain cases this will result in a shortening of the period allowed in Article 28 for the presentation of applications to set aside an award.
145. The second sentence of paragraph 2 covers the case of a party who does not intend to contest the decision apposing an enforcement formula to the award because, for instance, he has no argument to put forward, but who considers that he has the right to apply for the award to be set aside. In such a case the party must, on pain of being barred, present his application for setting aside within the period prescribed by Article 30, paragraph 1, instead of the period stipulated in Article 28. Without such a rule the application for setting aside might in some cases, after expiry of the period allowed to contest the enforcement order, constitute a channel of indirect appeal against that decision.
146. The Contracting Parties have the right under Article 1, paragraph 2, of the Convention, to fix the details of the judicial procedure with regard to joinder.
147. Paragraph 3 covers the case of a party who does not become aware until after notification of the enforcement order of one of the grounds for setting aside listed in Article 25, paragraph 3. In such a case the bar prescribed in paragraph 2 will not apply and the interested party may present an application for setting aside outside the time-limit laid down in paragraph 1 - in accordance with Article 28, paragraph 3.
148. Paragraph 4 provides for an exception to the provisions of paragraph 2 with regard to the time-limit, where the ground for setting aside is based on the absence of a valid arbitration agreement [Article 25, paragraph 2 (c)]. This exception appeared essential to cover such cases as that of a party who did not consider himself bound by an arbitration agreement and did not appear before the arbitral tribunal or, having appeared, refused to acknowledge its jurisdiction. In this case the interested party may, while appealing against the enforcement order, submit in the same proceedings an application for setting aside, even if the period stipulated in Article 28, paragraph 1, has expired.
149. Paragraph 5 empowers the judicial authority seized of an appeal in accordance with paragraph 1 or of an application for setting aside to order that enforcement of the award be stayed.
150. Paragraph 6 dispenses a party against whom an award has been made enforceable from instituting proceedings for withdrawal of the enforcement order, where the award was set aside before the order was made. This provision is, moreover, in harmony with Article 26.
151. The whole of Article 30 may be the subject, of a reservation [Annex II, paragraph (n) ].
152. In some countries a relatively high proportion of arbitration proceedings end not in an award but in a compromise entered into before the arbitrators and constituting an enforceable instrument. The Committee of Experts thought this situation should be taken into account in the uniform law. In order to ensure that parties shall not appear before persons whom they have appointed as arbitrators for the purpose of entering into an enforceable compromise before them, without there having been any previous arbitration proceedings or even an arbitration agreement, it was specified that the article applies only to compromises reached in the course of a dispute already referred to an arbitral tribunal.
153. The Committee of Experts did not wish to prejudge the question whether a compromise within the meaning of paragraph 1 can be contested with a view to having it set aside on the grounds listed in Article 25, or whether it could be the subject of a plea of nullity on grounds applicable to contracts in general or compromises in particular. For this reason it was not possible to combine an appeal against the grant of enforcement with an application for setting aside in accordance with Article 30.
154. The time-limits and formalities applicable to the appeal mentioned in paragraph 3 will be governed by the municipal law of each Contracting Party.
155. The Contracting Parties may reserve the right not to introduce this article into their law [Annex II, paragraph (o) 1 .
Reservations (Annex II)
156. Reservation (a) : This reservation meets the desires of several delegations. Some of these stated that, in their countries, arbitration agreements were often concluded orally . Others felt that there should be stricter provision for the form of an arbitration agreement than that contained in Article 2 so as to ensure that both parties really wish to have recourse to arbitration. The reservation also enables the arbitration agreement to be drawn up in a different form, according to whether it is being concluded between businessmen or between non-businessmen.
157. Reservation (b) : The justification of this provision is laid down in the Commentary, No. 34.
158. Reservation (e) : A number of delegations urged the importance of safeguarding the system-very widespread in some branches of trade-whereby each party appoints one arbitrator, the third arbitrator intervening only if the two appointed arbitrators cannot agree on a solution to the dispute.
159. Reservation (d) : Articles 10 and 19 of the uniform law provide that, where the arbitrators are named in the arbitration agreement, the agreement shall terminate ipso jure if an arbitrator has to be replaced or if an award is not made within the prescribed period. Some delegations field that this arrangement did not reflect the presumed will of the parties and that the arbitration agreement should terminate only in so far as concerns the dispute with which the arbitrators were required to deal.
160. Reservation (e) : The necessity for such a provision is laid down in the Commentary, No. 84.
161. Reservation (f) : Some delegations were unable to agree to the provision at the end of paragraph 5 of Article 25 of the uniform law whereby a party who becomes aware of a ground for the challenge or exclusion of an arbitrator only after the award is made has no means of putting forward that ground. One delegation maintained that it is not within the power of a court of law to intervene, during arbitration proceedings already instituted, for the purpose of giving a ruling as to whether a ground for challenge or exclusion is well-founded. The reservation makes allowance for the position of these delegations.
162. Reservation (g) : This reservation was inserted at the request of a delegation who argued that it would protect the rights of the parties and prevent abuse.
163. Reservation (h) : According to paragraph 2 of Article 22, the parties may agree that, where a majority cannot be obtained at the deliberation of the arbitrators, the. president shall have a casting vote. Some delegations thought that the parties should not be given this right. Other delegations, however, were of the opinion that the president of the arbitral tribunal must, in such a case, have a casting vote not only where the parties had so stipulated but also, by law, where they had made no agreement in the matter. Certain delegations, finally, considered that where a majority could not be obtained and the parties had made no provision in the matter, the municipal law might stipulate that the arbitration agreement should terminate.
164. Reservation (i) : The purport of this reservation has been explained in paragraph 108 above.
165. Reservation (j) : This reservation allows Contracting Parties which do not recognise the system of deposit of awards not to introduce it into their law. It also allows Contracting Parties to provide that the award shall or may be deposited elsewhere than with the registry of the court.
166. Reservation (k) : Since the idea of the authority of res judicata is connected with certain fundamental rules of civil law or procedure, a number of delegations asked to be dispensed from introducing Article 24 of the uniform law into their legislation or to be empowered to adapt it to the legal requirements of their country.
167. Reservation (l) : Some delegations held that an award could be set aside in every case where it was made in ignorance of a fact or evidential matter of decisive importance which the applicant for setting aside could not have invoked before the award was made. This position is in line with the principle contained iii the law of civil procedure of certain countries whereby all evidence must be admitted. The possibility of setting aside the award is not, on that view, limited to cases where evidence has been withheld within the meaning of paragraph 3 (e) of Article 25. The reservation also allows the words "document or other piece of evidence" in paragraph 3 of Article 28 to be replaced by different expressions in order to render the ideas explained above.
168. Reservation (m) : A few delegations maintained that the behaviour of the parties during the arbitration proceedings should not be taken into consideration in deciding whether a ground for setting aside is well-founded. This objection to the rule in paragraph 4 of Article 25 is based on two arguments. In the first place, the parties to an arbitration, who need not be represented or assisted by lawyers, may omit to protest against certain faults vitiating the arbitration through ignorance of the possibilities or of the consequences of their omission. Secondly, the arbitration proceedings are not necessarily set down in an authenticated record as in the case of judicial proceedings. It follows that evidence of the behaviour of a party is sometimes difficult to produce. Nevertheless, in the opinion of the delegations in question, the irregular constitution of an arbitral tribunal composed of an even number of arbitrators should not be taken into account where a majority was obtained in the tribunal.
169. Reservation (n) : A number of delegations felt that, for reasons of procedure and judicial organisation, it was impossible to introduce the system of joinder into their law. The reservation allows derogation, in whole or in part, from Article 30.
170. Reservation (o) : Certain delegations were of opinion that the uniform law should not make rules for compromises entered into between the parties before arbitrators. Such a provision might cause greater weight to be given to those compromises than to compromises entered into before judicial authorities in their countries, or rules to be introduced which in some degree clashed with certain legal conceptions.
171. This Annex refers to the right available to Contracting Parties under Article 9 of the Convention. By reproducing in paragraph 1 the terms used in Article 1, paragraph 1, of the European Convention on International Commercial Arbitration concluded at Geneva on 21st April 1961, which delimits the field of application of that Convention, the Annex makes it clear that the Committee of Experts intended to enable Contracting Parties to give priority to the provisions of the uniform law in relations between States which are Parties to both Conventions.
172. It was agreed that the declarations mentioned in the Annex may either be expressed in general terms or may specify the conventions which a Contracting Party wishes to apply in an ancillary capacity only.
173. According to the Annex, priority will be given to the uniform law only in relations between Contracting Parties which have made those declarations and to the extent that the declarations correspond.
The notifications mentioned in the Annex enable each Contracting Party to be informed of the system adopted by the other Parties.