The UNCITRAL Model Law on International Commercial Arbitration in Asia

by Associate Professor Gary F. BELL

The United Nations Commission on International Trade Law (or UNCITRAL) adopted the UNCITRAL Model Law on International Commercial Law in 1985, and amended it in 2006 (hereinafter "Model Law"). There are 31 countries or jurisdictions in the Asia-Pacific which claim that their law governing international commercial arbitration is based on a version of the Model Law. Among these, one can find 6 of the 10 ASEAN countries. However, not all Model Law jurisdictions are equal.

On its website, the UNCITRAL posts the following disclaimer:

"Disclaimer: A model law is created as a suggested pattern for law-makers to consider adopting as part of their domestic legislation. Since States enacting legislation based upon a model law have the flexibility to depart from the text, the above list is only indicative of the enactments that were made known to the UNCITRAL Secretariat. The legislation of each State should be considered in order to identify the exact nature of any possible deviation from the model in the legislative text that was adopted. [...]"

It is therefore impossible to know merely by looking at the list of countries and jurisdictions that claim they have legislation based on the Model Law whether they have actually adopted the text of the Model Law in full, only in part or, in some cases, not at all. Hong Kong and Singapore, for example, have substantially adopted the text and structure of the Model Law with, however, some significant modifications. There are also jurisdictions which say they have adopted the Model Law but in fact have not adopted its text at all, but rather claim to have adopted the principles of the Model Law.

There are also many jurisdictions in Asia which have not claimed to have adopted the text or the principles of the Model Law, including for example Mainland China and Indonesia. One may still wish to know the extent to which their arbitration laws are similar or different from the Model Law.

The research project would examine the extent to which the text and/or the principles of the Model Law have been adopted in East Asia, Southeast Asia and India.

There have been other studies of arbitration law in Asia, but these have tended to be collections of the national legislations and commentaries on them, collections of essays on different jurisdictions in Asia or a textbook introducing in general terms of the arbitration laws in Asia. There has never been a study of the arbitration laws of a large part of Asia that systematically compares the different national laws using the Model Law as a template for the comparison. This could be extremely useful, as it would provide a common point of comparison.

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