Author: Ilias Bantekas*
Published: April 2021
| Jurisdiction: International |
Topics: Arbitral Process Delivery and Receipt of Communications Formal Requirements UNCITRAL Model Law Commencement of Arbitral Proceeding Basic Standards of Due Process |
Description:
I. INTRODUCTION
The dispatch, delivery and receipt of written communications are vexing issues in the context of international commercial arbitration. One possible avenue would be to subject their regulation to the seat’s civil procedure rules governing judicial proceedings. However, such rules may produce adverse effects in respect of arbitral proceedings, particularly as concerns speed, the desire to avoid the seat’s public bureaucracy and the rigidity of civil procedure rules, and confidentiality. It was for this reason that a specialized provision in the UNCITRAL Model Law on International Commercial Arbitration was devoted to this issue, if for no other reason than to provide clarity through existing practices in the field. Article 3 of the Model Law—the focus of this article as it is deemed to reflect a general principle of civil procedure law common to the majority of nations—concerns the delivery and receipt of any written communication served by one party to another, as well as the notification of the award under Article 31(4) of the Model Law. The relevant part of Article 3 states:
(1) Unless otherwise agreed by the parties:
(a) any written communication is deemed to have been received if it is delivered to the addressee personally or if it is delivered at his place of business, habitual residence or mailing address; if none of these can be found after making a reasonable inquiry, a written communication is deemed to have been received if it is sent to the addressee’s last-known place of business, habitual residence or mailing address by registered letter or any other means which provides a record of the attempt to deliver it;
(b) the communication is deemed to have been received on the day it is so delivered.
Article 3, therefore, posits the general rule on mandatory and non-mandatory notifications as may arise from a variety of provisions in the Model Law. The key issues in Article 3 relate to when notification is effectively deemed received (with appropriate proof thereof), as well as the concepts “place of business,” “last-known place of business,” “habitual residence” and “mailing address.” In addition, one needs to be apprised of the requirements of a “reasonable inquiry” into identifying an effective address for communicating something to the other party. As will be demonstrated in the sections below, Article 3 does not concern the content—quality, clarity, appropriateness or accuracy, for example—of a written communication, even if such matters are occasionally conflated with the service or receipt of communications. Similarly, it does not govern the timeliness of the notice, this being an issue determined by individual provisions of the Model Law.
* Professor of International Law and Arbitration, Hamas bin Khalifa University (Qatar Foundation), College of Law and Adjunct Professor of Law, Georgetown University, Edmund A Walsh School of Foreign Service.