Testing the harmonisation and uniformity of the UNCITRAL model law on international commercial arbitration
thesisposted on 29.06.2015, 14:43 by Stewart Dean Lewis
The 1985 UNCITRAL Model Law attempts to introduce uniformity into the procedural aspects of international commercial arbitration and has been adopted by 97 jurisdictions. This thesis tests the achievement of this objective in Australia, Hong Kong and Singapore in respect of Article 34 (and its equivalent in the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards) which empowers a court to set aside an arbitral award. Uniformity in law is generally considered a matter of function and degree, with absolute uniformity not being required for the achievement of the appropriate degree of functional similarity. An internationalist approach to the interpretation of the Model Law is expressed in Article 2A, which was introduced in 2006, although this was required from the outset. The achievement of uniformity is tested by analysing how the legislators and courts have implemented (textual uniformity) and applied (applied uniformity) the Model Law. Significant textual dissimilarities are identified in how the three jurisdictions adopt an internationalist approach and some potentially significant textual dissimilarities in the adoption of Article 34/V. An analysis of over 300 cases shows, by reference to internationalist norms (‘I-Norms’), that an internationalist approach has been present throughout, but in particular in the last 10 years or so in Singapore and the last 5 years in Australia. Applied uniformity is also tested by a method which identifies principles of law which pursuant to the internationalist approach are able to be cited cross border albeit not in a binding way (‘I-Ratios’ derived from International Ratio Decidendi). This analysis demonstrates numerous citations of decisions from other jurisdictions but few adoptions of their I-Ratios. The jurisdictions analysed are thus shown to have achieved what can be considered to be a constantly developing degree of textual and applied uniformity.