UNCITRAL Working Group II : Dispute Settlement, Day 2

On Tuesday, Feb. 13, Day 2 of the 79th session of the UNCITRAL Working Group II : Dispute Settlement, which is taking place this week in New York, delegates from Canada drafted propositions for paragraph III. (A) on the Model Clause on adjudication.

The focus was on the scope of the clause, which can be found in its entirety at the link here. 

Delegates will choose the final scope by the end of the week.

There was dissension about "III. Model clause on adjudication." Specifically, the section in question was "A. Draft model clause," and under that section, A(3), pertaining to the procedure in case of a dispute relating to compliance with predecessor subparagraph 2(i).  

Subparagraph 2(i) requires an "undertaking," according to A(3).  Subparagraph 2(i) states, "The determination of the adjudicator shall be binding on the parties and the parties shall comply with the determination without delay."

The common law procedure of adjudication as intended in the current draft of A(3) refers to a “pay now argue later” type of dispute settlement, according to the UNCITRAL debate. Delegates from France particularly, raised concerns about the enforceability of such a reduced scope of arbitration, fearing that generalizing this procedure initially intended for construction disputes goes against the New York Convention. 

More to come after Wednesday’s discussions.

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The author, a CPR Institute Spring 2024 intern, is a Master of Laws (LL.M.) in Dispute Resolution and Advocacy student at the Benjamin N. Cardozo School of Law, Yeshiva University, New York.

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