On Drafting an “Ideal” Arbitration Statute – Vol. 25 No. 1

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Author: Katlyn Thomas*

Published: August 2014

Description: Recently I was asked by the government of the United Arab Emirates to advise it on the drafting of a new arbitration statute, which caused me to reflect on the provisions which, in my view, should be incorporated into such a statute. Most other commentators who have grappled with this question have suggested using the 1985 UNCITRAL Model Law on International Commercial Arbitration (the “Model Law”) as a starting point – a suggestion with which I agree.

However, there are reasons why it might not be a wise decision to simply incorporate verbatim the provisions of the Model Law into a new statute. For one, the Model Law was designed to address the needs of international and commercial dispute resolution, and although many of its provisions have been used by states with respect to purely domestic and non-commercial forms of arbitration, there are a number of policy issues that arise in the context of the resolution of domestic disputes that in the view of some states might require provisions not found in the Model Law.

A second reason is that the Model Law does not address a number of important issues that ideally should be addressed by a state in order for arbitration to be an attractive form of dispute resolution. It is telling that neither England nor France – two of the most important centers for international arbitration – adopted the Model Law when they recently revised their arbitration statutes. Rather, there is agreement among a number of international arbitration experts that the Model Law, as drafted in 1985, failed to address some issues pertinent to the arbitration process and that an ideal statute should include provisions dealing with some of these ancillary issues.

Indeed, as I have noted in my book, Judicial Benchbook on International Arbitration: A Guide for Judges in the Middle East,1 two of the most prominent arbitration experts, Lord Michael Mustill and Stephen Boyd, have suggested that additions and changes to the provisions of the Model Law may be warranted. They noted in their treatise on arbitration that “[t]he Model Law is . . . far from comprehensive. This was inevitable, given the need for a text on which the representatives of many states could concur. Its promoters were, we believe, right to limit their aims, and the agreed text is a notable achievement. The fact remains…

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*Katlyn Thomas is an attorney in New York who specializes in the arbitration of disputes involving entities in the MENA region. For nine years she was an advisor to the Commercial Law Development Program of the U.S. Department of Commerce on dispute resolution issues involving the MENA region and was recently an advisor to the government of the UAE on the drafting of a new arbitration statute. She is the author of a book, Judicial Benchbook on International Arbitration: A Guide for Judges in the Middle East (2011), in English and Arabic.