YAR - Young Arbitration Review - Edition 10

2011. YAR - Young Arbitration Review All rights reserved.
1 YAR JULY 10, 2013
R
EA
Y
-3
YAR
YOUNG ARBITRATION REVIEW

Under40 International Arbitration Review
www.yar.com.pt
[PREFACE - SOME LIKE IT HOT] by Jos Miguel Jdice [INVESTMENTS AND QUANTUM METHODOLOGY IN THE LINE
OF FIRE LESSONS FROM ROMPETROL GROUP NV VS ROMANIA] by Robert Rothkopf [NEIGHBOURS FRIENDLY PACT
ON DISPUTE RESOLUTION] by Veeraraghavan Inbavijayan and Kirthi Jayakumar [THE AFTERMATH OF THE REVOLUTION:
AN ASSESSMENT OF THE COMPATIBILITY OF THE TUNISIAN LAW FOR INTERNATIONAL ARBITRATION WITH GENERAL
CONTEMPORARY PRACTICE IN INTERNATIONAL COMMERCIAL ARBITRATION] by Henry Clarke [MOTIVATION OF
ARBITRAL AWARDS: A FEW NOTES] by Duarte Gorjo Henriques [28 USC 1782: AN AMERICAN WINGMAN FOR
INTERNATIONAL ARBITRATION DISPUTES] by Andr Pereira da Fonseca [THE 2010 REVISION OF THE ARBITRATION
RULES OF THE CHAMBER OF ARBITRATION OF MILAN] by Chiara Catti [THE LONG AWAITED PORTUGUESE MEDIATION
LAW FUNDAMENTAL PRINCIPLES] by Thomas Gaultier [YAR BRINGS ICC YAF TO PORTUGAL FOR THE FIRST TIME] by
Pedro Sousa Uva and Gonalo Malheiro [INTERIM RELIEF IN INTERNATIONAL ARBITRATION: EMERGENCY ARBITRATOR
PROVISIONS] by Steven P. Finizio and Jeremy Bocock [CONCURRENT POWERS BETWEEN ARBITRAL TRIBUNALS AND
STATE COURTS REGARDING INTERIM MEASURES] Sofia Martins and Miguel Oliveira Martins [ARBITRAL TRIBUNALS AND
STATE COURTS: PARTNERS OR COMPETITORS?- SOME REMARKS ON PRELIMINARY ORDER FROM A PORTUGUESE LAW
PERSPECTIVE] by Porfrio Moreira [LEARNING TO DEAL WITH DIFFERENT LEGAL SYSTEMS. TAKING OF EVIDENCE IN
INTERNATIONAL COMMERCIAL ARBITRATION] by Luis Fernando Guerrero [STATE COURT ASSISTANCE OF ARBITRAL
AWARDS ON THE TAKING OF EVIDENCE UNDER THE PORTUGUESE ARBITRATION LAW] by Pedro Sousa Uva [GETTING
TO KNOW ABEARB A BIT BETTER] By Associao Brasileira de Estudantes de Arbitragem.
THE YOUNG ARBITRATION REVIEW IS AVAILABLE ONLY TO SUBSCRIBERS AND MAY ONLY BE DISTRIBUTED ONLINE, OR BY ANY OTHER MEANS, BY YAR
2 YAR JULY 10, 2013
YAR

EDITION 10 JULY 2013
DIRECTORS
Pedro Sousa Uva
Gonalo Malheiro
PREFACE
Jos Miguel Jdice
AUTHORS
Robert Rothkopf
Veeraraghavan Inbavijayan
Kirthi Jayakumar
Henry Clarke
Duarte Gorjo Henriques
Andr Pereira da Fonseca
Chiara Catti
Thomas Gaultier
Pedro Sousa Uva
Gonalo Malheiro
Steven P. Finizio
Jeremy Bocock
Sofia Martins
Miguel Oliveira Martins
Porfrio Moreira
Luis Fernando Guerrero
Associao Brasileira de Estudantes de Arbitragem
EDITING
Rita Pereira
SUBSCRIPTIONS
To subscribe to YAR Young Arbitration Review, please contact young.arbitration.review@gmail.com
Annual subscription: 200
3 YAR JULY 10, 2013
[ARTICLES]
PREFACE - SOME LIKE IT HOT

by Jos Miguel Jdice
1 - INVESTMENTS AND QUANTUM METHODOLOGY IN THE LINE
OF FIRE LESSONS FROM ROMPETROL GROUP NV VS ROMANIA
by Robert Rothkopf
2 - NEIGHBOURS FRIENDLY PACT ON DISPUTE RESOLUTION
by Veeraraghavan Inbavijayan and Kirthi Jayakumar
3 - THE AFTERMATH OF THE REVOLUTION: AN ASSESSMENT
OF THE COMPATIBILITY OF THE TUNISIAN LAW FOR INTERNATIONAL
ARBITRATION WITH GENERAL CONTEMPORARY PRACTICE
IN INTERNATIONAL COMMERCIAL ARBITRATION
by Henry Clarke
4 - MOTIVATION OF ARBITRAL AWARDS: A FEW NOTES
by Duarte Gorjo Henriques
5 - 28 USC 1782 AN AMERICAN WINGMAN
FOR INTERNATIONAL ARBITRATION DISPUTES
by Andr Pereira da Fonseca
6 - THE 2010 REVISION OF THE ARBITRATION RULES
OF THE CHAMBER OF ARBITRATION OF MILAN
by Chiara Catti
7 - THE LONG AWAITED PORTUGUESE
MEDIATION LAW - FUNDAMENTAL PRINCIPLES
by Thomas Gaultier
4 YAR JULY 10, 2013
[ARTICLES]
REPORT ON ICC YAF & YAR EVENT IN LISBON MAY 16 2013

8 - YAR BRINGS ICC YAF TO PORTUGAL FOR THE FIRST TIME
by Pedro Sousa Uva and Gonalo Malheiro
9 - INTERIM RELIEF IN INTERNATIONAL ARBITRATION:
EMERGENCY ARBITRATOR PROVISIONS
by Steven P. Finizio and Jeremy Bocock
10 - CONCURRENT POWERS BETWEEN ARBITRAL TRIBUNALS AND
STATE COURTS REGARDING INTERIM MEASURES
by Sofia Martins and Miguel Oliveira Martins
11 - ARBITRAL TRIBUNALS AND STATE COURTS: PARTNERS
OR COMPETITORS?- SOME REMARKS ON PRELIMINARY ORDER
FROM A PORTUGUESE LAW PERSPECTIVE
by Porfrio Moreira
12 - LEARNING TO DEAL WITH DIFFERENT LEGAL SYSTEMS. TAKING
OF EVIDENCE IN INTERNATIONAL COMMERCIAL ARBITRATION
by Luis Fernando Guerrero
13 - STATE COURT ASSISTANCE OF ARBITRAL AWARDS ON THE
TAKING OF EVIDENCE UNDER THE PORTUGUESE ARBITRATION LAW
by Pedro Sousa Uva
14 - GETTING TO KNOW ABEARB A BIT BETTER
By Associao Brasileira de Estudantes de Arbitragem
5 YAR JULY 10, 2013
[PREFACE]
SOME LIKE IT HOT...

By Jos Miguel Jdice
Arbitral Tribunals are different animals as compared with
A Judge is a professional that begins his/her career very
Judicial Courts. This does not intend to mean that Tribunals
young, quite often without any experience of different ways of
are more qualified technically, specialized, efficient, fact specific,
practicing law, insulated from lawyers, and they dont want to
pragmatic, open minded and business oriented, let alone less
face appeal court decisions that would be avoided if they accepted
prone to formal decision that dont bring peace to the parties
all the lawyers behavior albeit time consuming, irrelevant or
conflict once and for all. This is often true, albeit the experience
confrontational. They are normally prepared to accept waste of
of judges, their independence and impartiality, the honesty, of
time, tricks and fight on peripheral aspects of the case as for them
the very large majority, create at least in Portugal a high pattern
this is lawyers way and when made in a sophisticated mood
that arbitrators should use for inspiration.
even brings good moments to enjoy and remember, as if it was

theatre and therefore the show requested acting. They have a
The point here is clearly another and is actually related
fixed salary and see no advantage to an entrepreneurial approach
to counsel behavior in front of Judges or Arbitrators. As a rule
to decisions and are proud of it. When faced with an imbalance
of thumb, if counsel thinks that Judges and Arbitrators (at least
of quality and preparation between each side of the bench they
in the international arena) are the same species of professionals
instinctively protect the weaker party and tend to disregard good
with similar or equivalent reactions, probably they are missing
advocacy as a litmus test for each partys case.
the point and making mistakes that might jeopardize or

complicate even a strong case.
Arbitrators have diversified past experiences, quite often
6 YAR JULY 10, 2013
work or have worked as advocates, are business oriented,
When these lawyers come to the arbitration arena, they
are horrified with waste of time, have an agenda full of
tend to think of arbitrators the same that they use to think
commitments, are neither paid by fixed salary (as judges) nor
of judges, forgetting all the differences mentioned above, let
by the hour (as lawyers). They have a vested interest in being
alone the fact that arbitral awards are not appealable and
efficient, prefer to solve the case once and for all, and are not
setting aside is almost impossible unless due process has not
willing to find a formal way out that provides for an award but
been respected. And quite often these lawyers begin making
keeps the conflict alive and unsolved. And they are older and
the usual mistakes, jeopardizing the case, creating bad will,
quite often with an ego big enough to be unprepared to accept
confusing the arbitrators about strong points they could have
confrontation, without sound reasons, with younger lawyers.
evidenced for the case by mixing them with irrelevant ones,

and letting the other side to make all the possible points by
They know by heart the usual counsels tricks, are

familiar with dilatory maneuvers, expect that well remunerated
being just tough, professional and focused, and not histrionic,

aggressive and plainly out of touch.
professionals will be very well prepared and dont consider his/

her duty to protect the possible weaker party or the one that has
Yes, some like it hot. And normally Clients love it, as they
been crazy enough not to appoint qualified and experimented
look to lawyers as gladiators or mercenaries (well) paid to fight
lawyers. They are trained to separate what is really nuclear for
and are not prepared to understand restraint, coolness, efficiency.
the decisions from the paraphernalia of details and peripheral
Client enjoy the smell of blood when confronted and lawyers
issues, that clients press counsel to consider, that have been
are normally more than happy to deliver. If in the end it turns
from a personal point of view outrageous but have almost
wrong, the judge was, inevitably, incompetent (but arbitrators
nothing to do with what is at stake.
have been in a way or another nominated by lawyers).
However, counsels in arbitration - as men, so the novel
So, my good Colleagues, do as you like it. Have it hot.
says - come from Mars. The cursus honorum as a rule begins
Work for the audience. Provide fresh blood and adrenaline to
with litigation in national courts, where the name of the game
your Client. And you may finally receive what you deserve
is fighting, protesting, objecting, wasting time, defending the

indefensible, pressing the judges, appealing against his/her
decisions until they manage to have the judge paralyzed and
prepared to accept anything that the lawyers pretends, working
for the gallery or for the pleasure of the unprepared client. As
if this was not enough, Judges know that they risk having their
decisions annulled by appeal courts, and therefore take all the
care to avoid any small mistake that will bring a black ball to
his/her career.
Jos Miguel Jdice1

Lisbon, June 2013
1- Founding Partner and Head of Arbitration (PLMJ, Lisbon), Visiting Associate Professor of Universidade Nova (Lisbon),
international arbitrator, member of ICC International Court of Arbitration, of the ICSID Roster of Arbitrators, Board of Directors
of Club Espaol de Arbitraje and Associao Portuguesa de Arbitragem.
7 YAR JULY 10, 2013
INVESTMENTS AND QUANTUM

METHODOLOGY IN THE LINE OF FIRE
LESSONS FROM ROMPETROL
GROUP NV VS ROMANIA
By Robert Rothkopf
The recent Rompetrol Group NV v Romania
methodology relied on the assumption that all of the acts
award provides important lessons for investors
comprising Romanias criminal investigations were breaches of
as to (1) when State conduct against individual
the investment treaty.
company officers rather than the claimant investor itself might

constitute a breach of investment treaty protections; and (2)
The award raises interesting questions regarding the
how only partial success on liability might collaterally damage
balance between a States legitimate interests in tackling crime
proof of quantum if an all or nothing methodology is used.
and the investors treaty rights, noting future tribunals likely

sensitivity to allegations that the arbitration itself is being
Rompetrol claimed, inter alia, that the arrest, detention,
brought to deter a State from legitimate pursuit of criminal
criminal investigations and wire-tapping of its directors
investigations.
It also serves as a reminder of the strategic
constituted State-sponsored harassment that breached BIT
considerations that investors face in selecting a suitable
guarantees enjoyed by its investment. The Tribunal held that
methodology for quantum of damages.
the State conduct directed against the company officers had to

have a sufficiently close link to the investment or investor to
Background
fall within the zone of the treatys protection. The requisite

connection was found in relation to certain elements of
Rompetrol claimed that Romania had breached its
Romanias conduct which amounted to a pattern of disregard
obligations under Article 3(1) and 3(5) of the Agreement on
for the rights of Rompetrols employees and constituted a
Encouragement and Reciprocal Protection of Investments
breach of Rompetrols right to fair and equitable treatment. The
between the Kingdom of The Netherlands and Romania
partial success on liability ultimately unravelled Rompetrols
(the BIT) to provide its investment in Rompetrol Rafinare
submissions on economic damages, given that the quantum
SA (RRC) fair and equitable treatment, full protection and
8 YAR JULY 10, 2013
security and non-impairment. The claims arose from measures
that whilst the wire-tapping by the Romanian Intelligence
taken by Romanian anti-corruption and criminal prosecution
Service had been devoid of the necessary threat to national
authorities against two individuals, Mr Patriciu and Mr
security and that Mr Patricius personal rights of privacy had
Stephenson, who directed the affairs of RRC, a company born
been affected, there had been no harm to his business activities
through the privatisation of the State oil-refining industry
[para 260 261]. Overall there had been no co-ordinated
after the fall of Ceausescu in 1989. Rompetrol alleged that
campaign of harassment [para 276].
the investigations, which included the arrest, detention, travelban and wire-tapping of Mr Patriciu, were politically and
A legitimate expectation during criminal proceedings
commercially motivated and breached the guarantees in the

BIT. Romanias response was that the investigations were a
Nevertheless, the Tribunal recognised that a State may
legitimate part of its implementation of the National Anti-
incur international responsibility for breaching its obligations
Corruption Strategy that it had pursued in order to gain access
under an investment treaty to accord fair and equitable treatment
to the European Union.
to a protected investor by a pattern of wrongful conduct during

the course of a criminal investigation or prosecution, even
A link between State conduct against individuals

and the investor is required
where the investigation and prosecution are not themselves

wrongful. It asserted further provisos: (1) the pattern must
be sufficiently serious and persistent that the interests of the
The Tribunal emphasised the special character of
investor must be affected; and (2) there must be a failure by
this case given that the claims arose from measures directed
the State to pay adequate regard to how those interests ought
against individuals linked to the investor rather than against
to be duly protected. In the Tribunals view, the legitimate
the investor itself, noting that these cases were rare amongst
expectations of a protected investor include the expectation
reported awards. The individuals were not claimants under
that the State authorities will seek means to avoid unnecessary
the BIT and their rights were personal and distinct from those
damage or at least to minimise or mitigate the adverse effects
of Rompetrol. As such, even if the alleged State-sponsored
on the investment if the investors interests become entangled
harassment of the individuals through an unlawful criminal
in the criminal process directly or indirectly [para 278].
investigation had breached the individuals personal rights,

Rompetrol had to show that there was a connection between
It was on this point that Rompetrol obtained partial
the States conduct against the individuals and State conduct
success. The Tribunal found that there had been a pattern
against the investment itself in order for that conduct to qualify
of disregard by the [prosecutorial and investigation agencies]
as a violation of the BIT protections. Rompetrols case would
for the procedural rights of [Rompetrols] executives, and in
[stand or fall] by whether it is able to make out its claim
particular for the likely and foreseeable effects on the interests
that the criminal investigations have breached the rights of
of [Rompetrol] itself as a protected foreign investor, as
[Rompetrol] itself [para 151].
demonstrated by, inter alia, the procedural irregularities during

the criminal investigation, the conduct of the prosecutors, and
The Tribunal concluded that three kinds of actions could
the arrest and attempted imprisonment of the executives.
fall within the area of protection under the BIT: (a) actions
against the investor itself (or its investment); (b) action against
A crucial element in establishing the States failure to
the investors executives for their activity on behalf of the
pay adequate regard to the investment was the documentary
investor; and (c) action against the executives personally but
evidence showing that from a certain point at least in the
with the intent to harm the investor [para 200].
lengthy saga of the criminal investigations, the [prosecution

and investigation authorities] knew that the interests of
No co-ordinated campaign of harassment
[Rompetrol] as such stood directly or indirectly in the line

of fire. [para 279]
The Tribunal recognised that its role was not to

pronounce on the rightness or wrongness of the pending
Indeed the prosecutions request for
Mr Patricius detention referred directly to the investment

arbitration and the Dutch investor i.e. Rompetrol.
criminal charges [para 174] but to determine whether the

authorities conduct constituted a breach of the BIT guarantees.
Damages: Rejection of the event study method
In so doing, the Tribunal examined whether the requisite link

to the investment was present. The Tribunal did find that there
The Tribunal found that Romania had breached Article
had been animus and hostility towards Mr Patriciu on behalf
3(1) of the BIT to a limited extent by virtue of only some of the
of the prosecutorial officials and that this may have affected the
authorities conduct such as the procedural irregularities during
authorities tactical approach [para 245 and 248]. As regards the
the criminal investigations and the arrest and attempted
detention and attempted imprisonment, the Tribunal accepted
imprisonment of Mr Patriciu and Mr Stephenson, dismissing
that there had been procedural irregularities but that it could
the remainder of Rompetrols claims [para 279 - 280]. This
not find anything wrongful in the prosecutors execution of
determination, whilst positive for Rompetrol, proved to have
its rights to apply for pre-trial detention [para 251].
serious consequences for its submissions on damages which

relied wholly on the event study method predicated upon
In perhaps the clearest example of conduct that lacked

sufficient connection to the investment, the Tribunal found
the Tribunal finding in favour of all of Rompetrols claims of

maltreatment.
9 YAR JULY 10, 2013
Rompetrol submitted that its damages comprised injury

to its reputation which had a deleterious effect on its existing
company by State authorities and any supposed incremental

effects from an illegal investigation. [para 286]
and future business, and caused actual loss of property rights.

Rompetrol argued that this damage was expressed through
Rompetrol made an alternative claim for moral damages to
legal expenses in defending against wrongful acts of the State
cover non-pecuniary injury for which monetary value cannot be
authorities, increased financing costs and loss of opportunity.
mathematically assessed, referring to the only two ICSID cases
It sought to quantify these damages through the event study
in which such damages have been awarded. Whilst the Tribunal
method.
accepted that the award of moral damages was permitted under

general international law, such damages would express themselves
The event study method employed by Rompetrol is a
here in the form of increased financing and transaction costs that
technique that seeks to measure price movements in publicly
were simply examples of actual economic loss or damages and
traded shares and to attribute those movements to specific
subject to the usual burden of proof. [para 289]
events as they become known to the market, isolating such

price movements from the background fluctuations that would
be expected in the relevant market in the ordinary course.
As Rompetrol had only put forward a single quantum

method for its economic losses which the Tribunal rejected
entirely, no compensation was awarded. Rompetrol tried to
Rompetrol argued that the markets knowledge of each
put forward alternative quantum evidence with its post-hearing
successive wrongful action taken against Rompetrols directors
brief without prejudice to its initial quantification model but this
by Romania on 12 out of 32 event days negatively affected
was without leave of the Tribunal and held to be inadmissible.
the value of the shares of RRC listed on the Bucharest Stock

Exchange. Romanias experts criticised this method on the basis
Conclusion
that only a minority of RRC shares were publicly traded, and so

could not be a reliable proxy for the majority controlling stake
This award is a salutary tale to would-be claimants
held by Rompetrol. Among other things, Romanias experts
considering how to prove damages and useful guidance as to
criticised the exclusion of positive events such as the buy-out
when the event study method might be suitable in investment
by KazMunaiGaz in 2007 which triggered a large increase in
treaty arbitration. Whilst some claimants may be concerned
share price. Rompetrols model also failed to accommodate the
that offering a tribunal alternative quantum methods might
natural recovery in share price that is observed when a feared
undermine the strength of their primary position and thereby
event does not in fact transpire.
encourage a more ambivalent result, this case highlights the

risk of submitting only a single all or nothing model. It may
However, the central defect in Rompetrols quantum
be more appropriate to structure quantum calculations in a way
methodology was to treat all of the acts by the Romanian
that equips the tribunal with the elements needed to award
authorities in relation to the criminal investigations as breaches
damages that correlate with their findings on the merits.
of the BIT, whereas the Tribunal had found that only some of
these State interventions constituted BIT breaches. As noted by
Finally, this award provides useful guidance on the
the Tribunal, this all-or-nothing approach ends up leaving the
treatment of a companys officers that will likely be influential
analysis somewhat stranded because a finding of partial illegality
in other treaty cases. As noted by the Tribunal, association
requires the experiment to be reconfigured and re-run [para 286].
with the management of a foreign investor or a foreign

investment cannot serve to immunize individuals from the
The Tribunal commented that the application of the
normal operation of the criminal law [para 152]. However,
event study method to cases such as this was fundamentally
in situations where political and commercial motives may be at
misconceived given that the alleged State misconduct was
play, investors would be wise to ensure that the State authorities
extensive and took place over a number of years. The method
are on notice that their protected investments are in the line of
would be more appropriate in cases where an expropriation
fire and that they owe a duty to mitigate the adverse effects
or introduction of a specific regulatory measure by the host
that might result from their enforcement activities.
State might result in a demonstrable proximate reaction by the

market. Furthermore, the method was not apt to distinguish
between the market effects of a legitimate investigation of a
Robert Rothkopf
1. ICSID Case No. ARB/06/3 dated 6 May 2013.

2. SARL Benvenuti & Bonfant v Peoples Republic of Congo, ICSID Case No. ARB/77/2, Award, 8 August 1980, and Desert Line Projects LLC v Republic of Yemen, ICSID Case
No. ARB/05/17, Award, 6 February 2008.
10 YAR JULY 10, 2013
NEIGHBOURS FRIENDLY PACT

ON DISPUTE RESOLUTION
By Veeraraghavan Inbavijayan and Kirthi Jayakumar
Introduction
demanding independence from a colonial leader that had been

too imperialistic to afford the nation its rights. At the stroke of
That India and Pakistan have a shared history
midnight, while independence was won, two children countries
that goes beyond to a time that dates earlier than the partition
were born from the original. These countries will remain
in 1947, is a given. Whether it is in the unsolved riddle of
engaged and steadfast in their differences for years to come
sovereignty over Kashmir, or the question of who owns Sia
though hopeful remnants of peace and brotherhood would rear
Chen, the glacier, or if it is a question of terrorism and concerns
their heads in the form of solidarity through cricket matches
of cross-border militancy, there have been plenty of issues that
and cinema, and through a motivated decision to arbitrate
have sparked debates and rhetorical questions on both sides.
differences.
And yet, there is a glimmer of hope when the two nations decide
not to let another question fester and snowball into a debate.
Of this repertoire is the Kishenganga Project, and the

difference of opinion that arose from it.
The Indus Valley was the genesis of civilization in the

region for as long as humanity can possibly remember, or even
The dispute
date back. The fount of the regions first tryst with development
soon became a breeding ground for multiple cultures. World
The Indus Waters Treaty is an international agreement
over, many countries were attracted to the Indus Valley
signed by India and Pakistan in 1960 that regulates the use
Civilization whether in trade, or in conquest. From Porus to
by the two States of the waters of the Indus system of rivers.
Alexander the Great, from the Persians to the Mughals, from
Pakistan instituted arbitral proceedings against India in
the Dutch and Portuguese to the British everyone wanted a
2010, requesting that a court of arbitration determine the
piece of India as it then was.
permissibility under the Treaty of a hydro-electric project (the

Kishenganga Hydro-Electric Project, or KHEP) currently under
With the advent of British rule, the country remained
construction by India on the Kishenganga/Neelum River, a
actively seized in its struggle for independence. India as
tributary of the Jhelum River. The KHEP is designed to generate
a country remained steadfast in its pursuit of justice by
power by diverting water from a dam site on the Kishenganga/
11 YAR JULY 10, 2013
Neelum (within the Gurez valley, an area of higher elevation)
will certainly be a reduction of flows in the stretch of the
to the Bonar Nallah, another tributary of the Jhelum (lower in
Kishenganga (some 150 km) before it joins the Jhelum. This
elevation and closely located to Wular Lake) through a system
will affect not merely certain uses of the waters but also the
of tunnels, with the water powering turbines having a capacity
river regime itself and the ecological system. It may be true that
of 330 megawatts.
only a small part of the waters (30 per cent or so) flows from
the Indian part to the Pakistani part and that the rest (70 per
While water-sharing in the Indus system stands settled
cent) of the flows arise after the river crosses the LoC. However,
by the Indus Treaty 1960, divergences are possible, and have
the diversion of a substantial part of the former by India will
occurred, over the question of the compliance of Indian projects
undoubtedly have some impacts downstream.
on the western rivers with certain stringent provisions of the

Treaty which were meant to take care of Pakistans concerns as
a lower riparian.
Assuming that diversion from the Kishenganga to

another tributary is found permissible, there is a condition
attached: the existing agricultural use and use for hydro-electric
The Treaty recognises three categories of such divergence:
power generation on the Kishenganga in Pakistan must be
questions to be discussed and resolved at the level of the
protected. There is indeed some existing agricultural use along
Indus Commission, or at the level of the two governments;
the Kishenganga (Neelum) in PoK. Pakistan is also planning
differences (that is, unresolved questions) to be referred
the Neelum-Jhelum hydroelectric project at a point on the
to a Neutral Expert (NE) if they are of certain kinds (that
Neelum before it joins the Jhelum. These claims of existing uses
is, broadly speaking, differences of a technical nature); and
will probably be contentious issues between the two countries,
disputes (going beyond differences, and perhaps involving
with reference to (a) the crucial date for determining existing
interpretations of the Treaty) that are referable to a Court of
use and (b) the quantum of existing use.
Arbitration. In the Kishenganga case, both difference and

dispute come into play. Pakistan has proposed the reference of
Pakistans contentions
certain technical issues to a Neutral Expert, and the submission

of a couple of other issues to a Court of Arbitrators.
Pakistan challenges, in particular, the permissibility

of the planned diversion by the KHEP of the waters of the
The Kishenganga is a tributary of the Jhelum. It originates
Kishenganga/Neelum into the Bonar Nallah, arguing that this
in J&K, crosses the Line of Control, runs for some 150 km
inter-tributary transfer will adversely affect the operation of
in Pakistan-occupied Kashmir, and joins the Jhelum (in PoK).
a hydro-electric projectthe Neelum-Jhelum Hydro-Electric
India proposes to build a dam on the Kishenganga shortly
Project or NJHEPbeing built by Pakistan on the Kishenganga/
before it crosses the LoC, divert a substantial part of the waters
Neelum downstream of the KHEP (the First Dispute). The
of the river through a tunnel to the hydroelectric project (330
transfer of water contemplated by India may be represented
MW, that is, 110 MW x 3) located near Bonar Nala, another
graphically as in the attached diagram (Annex A). Pakistan has
tributary of the Jhelum, and then return the diverted waters,
also requested that the Court determine whether the Treaty
after they have passed through the turbines, to the Jhelum via
permits India to deplete or bring the reservoir level of run-of-
the Wular Lake.
river hydro-electric plants below a level identified as Dead

Storage Level in the Treaty (the Second Dispute). Pakistan
An overview of the key contentions
submits that that such reservoir depletion would give India

impermissibly broad control over the flow of the river waters
The main dispute to be referred to a Court of Arbitration
allocated to Pakistan under the Treaty.
is on the issue of whether the diversion of waters from one

tributary of Jhelum to another is permissible under the Treaty.
Indias contentions
Art. III (2) of the Treaty requires India to let flow all the western
rivers to Pakistan and not permit any interference with those
For its part, India had stated its intent to use such reservoir
waters, and Art. IV (6) calls for the maintenance of natural
depletion to flush sediment out of the KHEPs reservoir. India
channels. If we go by these provisions, the diversion of waters
maintains that both the design and planned mode of operation
from one tributary to another seems questionable. On the other
of the KHEP are fully in conformity with the Treaty.
hand, there is another provision (Ann. D, paragraph 15 (iii))

which specifically envisages water released from a hydroelectric
An overview
plant located on one tributary of the Jhelum being delivered

to another tributary; this seems to permit inter-tributary
India and Pakistan are once again at loggerheads
diversion. The correct understanding of these provisions and
over the issue of water-sharing. Pakistan is raising strong
the determination of the conformity of the Kishenganga Project
objections to Indias construction of a hydropower project
to the Treaty is a matter for the two governments to agree upon,
on the Neelum River known as Kishanganga in India a
or for the Court of Arbitration to decide.
tributary of the Jhelum in the flashpoint territory of Kashmir.

While the dispute is only the latest in a long series of such
Any diversion of waters from a river is bound to reduce
scraps, it is the first to be referred to international arbitration
the flows downstream of the diversion point. It is true that
under the 50-year old Indus Water Treaty (IWT), marking an
the diverted waters will be returned to the Jhelum, but there
escalation in the race to take control of the Indus River.
12 YAR JULY 10, 2013
After bilateral negotiations collapsed in April last year, Pakistan
the diversion of water from one tributary of the Indus River
took the case over the 330-megawatt Kishanganga dam to the
to another. Pakistan said this violates the IWT, while India
International Court of Arbitration on the premise that India
argues the diversion is well within treaty provisions. India
had violated the World Bank-mediated IWT, which provides
maintains that it will only divert the Neelum to join the Jhelum
a mechanism for resolution of disputes over waters originating
River, which also flows through Pakistan and that therefore
from the Indus basin. Under the 1960 treaty, the waters of
the water will ultimately reach Pakistan anyway.
the eastern rivers of the Indus basin Sutlej, Beas and Ravi
are allocated to India, while Pakistan has unrestricted use
However, Pakistan has raised strong objections, saying
of the western rivers, Indus, Jhelum and Chenab.
the diversion will turn the countrys Neelum Valley into a

desert. Pakistani experts also argue that the reduced flow
This is the first case referred to international arbitration under
of the Neelum River will decrease the power generation
the provisions of the IWT. Despite persistent hostilities, India
capability of Pakistans proposed 969-megawatt Neelum-
and Pakistan have managed to uphold the treaty for decades.
Jhelum hydropower project by more than 20%.
Yet from time to time, the two south-Asian neighbours have

found themselves at odds over hydropower projects, as both
Last years floods in Pakistan forced it to halt construction
countries energy and irrigation needs continue to grow.
of the Neelum-Jhelum project, already delayed by problems

over land acquisition and failure to construct a bridge.
Pakistan has raised objections to a number of controversial
India, on the other hand, has speeded up work on the
projects undertaken by India in Kashmir in the past,
strategically important Kishanganga project in order to finish
including the Baglihar project on the Chenab River and the
it by 2014, well ahead of the 2016 deadline. Pakistan plans
Wullar Barrage on the Jhelum River. But the Kishanganga
to complete the Neelum-Jhelum project by 2015.
dispute assumes a greater significance because Pakistan

is also vying to construct its own project the Neelum-
India first developed plans for the 303-megawatt Kishanganga
Jhelum hydro scheme on the Pakistani side of the Neelum
project in 1984, but failed to build it for a long time. Egged on by
River. The IWT states that the country that completes its
Pakistans progress on the construction of the Neelum-Jhelum
project first will secure priority rights to the river.
project on the other side of Line of Control, India made frantic

efforts to revive the 18-year old plans in 2008. This project
Adding to tensions, the Neelum River flows across the militarised
is of strategic importance to Indiawe have to move heaven
Line of Control that separates the Indian and Pakistani
and earth to ensure the earliest commissioning of the project,
administered parts of Jammu and Kashmir and which has
the then minister of state for power, Jairam Ramesh, told a
witnessed the 1947-war between these two south Asian neighbours
press conference in New Delhi in 2008. Pakistan is not the only
and a number of military fire-exchanges since.
party that feels aggrieved. Kashmiri people feel deprived by

the fact India and Pakistan use their water resources without
The dispute over the Kishanganga project itself centres on
allowing local people the benefits they deserve.
13 YAR JULY 10, 2013
The basis of the arbitration and its initiation
revised by the 1907 Convention for the Pacific Settlement of

International Disputes. As of August 2009, 109 countries were
On 19 September 1960, the Government of the
party to one or both of these founding Conventions of the PCA.
Republic of India and the Government of the Islamic Republic
The PCA is not a court in the conventional understanding of
of Pakistan (the Parties) signed the Indus Waters Treaty 1960
that term, but an administrative organization with the object
(the Treaty).1 Article IX of the Treaty provides for a system
of having permanent and readily available means to serve
for the settlement of differences and disputes that may arise
as the registry for purposes of international arbitration and
under the Treaty. By Article IX the Treaty was also signed by
other related procedures, including commissions of enquiry
the International Bank for Reconstruction and Development
and conciliation. It is a permanent framework available to
in respect of the World Banks role under certain provisions of
assist temporary arbitral tribunals or commissions. The PCA
the Treaty. Instruments of ratification were exchanged between
is housed in the Peace Palace in The Hague, which was built
the Parties on 12 January 1961; the Treaty entered into force
specially for the Court in 1913 with an endowment from
on that date with retroactive effect as of 1 April 1960 as stated
Andrew Carnegie. From 1922 on, the building also housed the
in Article XII (2).
distinctly separate Permanent Court of International Justice,

which was replaced by the International Court of Justice in
Through a Request for Arbitration dated 17 May 2010,
1946. Unlike the ICJ, the PCA is not just open to states but also
Pakistan initiated proceedings against India pursuant to Article
to other parties. The PCA provides services for the resolution of
IX and Annexure G of the Treaty. In its Request for Arbitration,
disputes involving various combinations of states, state entities,
Pakistan stated that the Parties had failed to resolve the
intergovernmental organizations, and private parties. In the
Dispute concerning the Kishenganga Hydro-Electric Project
early 1980s, the PCA helped in setting up the administrative
(the KHEP) by agreement pursuant to Article IX(4) of the
services of the Iran-United States Claims Tribunal. The public
Treaty. Pakistan identified two questions that are at the centre
at large is usually more familiar with the International Court
of the dispute in the following manner:
of Justice than with the Permanent Court of Arbitration, partly

because of the closed nature of cases handled by the PCA
a. Whether Indias proposed diversion of the river Kishenganga
and to the low number of cases dealt with between 1946 and
(Neelum) into another Tributary, i.e. the Bonar-Madmati Nallah,
1990. The PCAs caseload has, however, increased since then.
being one central element of the Kishenganga Project, breaches Indias
The PCA administers cases arising out of international treaties
legal obligations owed to Pakistan under the Treaty, as interpreted
(including bilateral and multilateral investment treaties), and
and applied in accordance with international law, including Indias
other agreements to arbitrate. The cases conducted by the
obligations under Article III(2) (let flow all the waters of the Western
PCA span a wide range of legal issues, including disputes over
rivers and not permit any interference with those waters) and Article
territorial and maritime boundaries, sovereignty, human rights,
IV(6) (maintenance of natural channels)?
international investment (investor-state arbitrations), and

matters concerning international and regional trade. Hearings
b. Whether under the Treaty, India may deplete or bring the

reservoir level of a run-of river Plant below Dead Storage Level (DSL)
are rarely open to the public and sometimes even the decision
itself is kept confidential at the request of the parties.
in any circumstances except in the case of an unforeseen emergency?

The three disputes
The courts partial award
THE FIRST DISPUTE
In its analysis, the Court emphasized at the outset that
its Partial Award, just as the Indus Waters Treaty itself, does
not have any bearing on any territorial claims or rights of the
1. The Permissibility of Inter-Tributary Transfers under

the Treaty
Parties over Jammu and Kashmir. The Courts findings pertain

solely to the Parties rights and obligations with respect to the
In the First Dispute, the Court was approached and called
use of the waters of the Indus system of rivers, including with
upon to determine whether India is permitted under the Treaty
respect to the use of the waters of those portions of the rivers
to deliver the waters of the Kishenganga/Neelum River into the
that flow through disputed territory.
Bonar Nallah in the course of the operation of the KHEP. The

contextual perusal of the case led to an observation. As an initial
Understanding the PCA
matter, the Court observed that the Treaty expressly permits

the transfer of water by India from one tributary of the Jhelum
The Permanent Court of Arbitration (PCA), is an
to another for the purpose of generating hydro-electric power,
international organization based in The Hague in the
subject to certain conditions. The Court first found that this
Netherlands. It was established in 1899 as one of the acts of
right is not circumscribed by the Treatys restriction of Indian
the first Hague Peace Conference, which makes it the oldest
uses on the Western Rivers (which include the Kishenganga/
institution for international dispute resolution. The creation of
Neelum as a tributary of the Jhelum) to the drainage basin of
the PCA is set out under Articles 20 to 29 of the 1899 Hague
those rivers. This restriction relates to where water may be used,
Convention for the specific settlement of international disputes,
and is not violated by the use outside of the drainage basin of
which was a result of the first Hague Peace Conference. At the
electricity generated from the water. The Court then examined
second Hague Peace Conference, the earlier Convention was
the Treaty provision requiring the Parties to maintain the natural
14 YAR JULY 10, 2013
channels of the rivers and its effect on inter-tributary transfers.
In addition to the requirements described above, the
The Court found that this obligation involves maintaining the
Court recognized that Paragraph 15(iii) requires that then
river channels physical capacity to carry water, and does not
existing Agricultural Use or hydro-electric use by Pakistan
require maintaining the timing or volume of the flow in the
on the downstream reaches of the Kishenganga/Neelum not
river. Accordingly, this obligation does not limit Indias right to
be adversely affected by the KHEPs inter-tributary transfer.
transfer water for the purpose of generating hydro-electricity.
Pakistan argued that then existing uses are to be determined
Having established that Indias right to inter-tributary transfer
on an ongoing basis, whenever water is transferred from one
is not prohibited by other provisions of the Treaty, the Court
tributary to another. India, in contrast, argued that such uses
considered whether the KHEP meets the express conditions on
must be determined at a fixed point during the design of its
such transfer.
hydro-electric project. In seeking to establish when a then

existing agricultural or hydro-electric use is to be determined,
The Court noted that for transfer to be permissible, the
the Court was guided in the interpretation of the Treaty by
KHEP must (1) be a Run-of-River Plant; (2) be located on a
Article 31(1) of the Vienna Convention on the Law of Treaties:
tributary of the Jhelum; and (3) conform to Paragraph 15(iii) of
[a] treaty shall be interpreted in good faith and in accordance
the Treaty Annexure governing hydro-electric power generation.
with the ordinary meaning to be given to the terms of the
The Court observed that a Run-of-River Plant is a term of art
treaty in their context and in light of its object and purpose.
defined by the Treaty and that the KHEP is a Run-of-River
The Court first examined the text of Paragraph 15(iii), noting
Plant within that definition. The Court further decided that on
the provisions focus on the operation of hydro-electric plants
the facts of the case the KHEP should be regarded as located
and the implication that the determination of then existing
on the Kishenganga/Neelum notwithstanding that the KHEPs
uses should take place on an ongoing basis throughout the
power house is situated at a distance of 23 kilometres from that
operational life of a plant. The Court then considered the
river. The Court also found that, by releasing water into the
context of Paragraph 15(iii) and noted that the provision falls
Bonar Nallah after it has passed through the power house, the
within a continuum of design, construction and operation.
KHEP complies with the requirement that the water released
The Court observed that the provisions of the Treaty must be
below the Plant be delivered into another Tributary. Finally,
interpreted in a mutually reinforcing fashion, as it would make
the Court found that the KHEPs inter-tributary transfer is
little sense for the Treaty to permit a plant to be designed and
necessary, as required by the Treaty, for the generation of
built in a certain manner, but then to prohibit the operation of
hydroelectric power, as power can be generated on the scale
that plant in the very manner for which it was designed. Finally,
contemplated by India in this location only by using the 665
the Court examined the object and purpose of the Treaty and
metre difference in elevation between the dam site on the
found that the Treaty both gives Pakistan priority in the use of
Kishenganga/Neelum and the place where the water is released
the waters of the Western Rivers (including the Kishenganga/
into the Bonar Nallah.
Neelum) and India a right to generate hydro-electric power on

the Western Rivers.
2 The Interpretation of the Treaty with Respect to then

existing Agricultural Use or hydro-electric use by Pakistan
Turning to the application of the Treaty to the KHEP,
15 YAR JULY 10, 2013
the Court first considered the implications of the approaches
3. The Courts Request for Further Data
advocated by the Parties. The Court observed that under the

ambulatory approach advocated by Pakistan, a projects
Having
concluded
that
the
Treaty
requires
the
design could be cleared for construction as being consistent with
preservation of a minimum flow of water downstream of
the design specifications of the Treaty, but then be prevented
the KHEP, the Court determined that the data provided by
from operating by new uses by Pakistan. In the Courts view,
the Parties are insufficient to allow it to decide the precise
the uncertainty created by this approach, and the potential
amount of flow to be preserved. The Court therefore deferred
for wastage, would have a chilling effect on the undertaking
its determination of the appropriate minimum flow to a Final
of any hydro-electric projects by India on the Western Rivers.
Award, and requested the Parties to provide additional data
With respect to the approach advocated by India, under
concerning the impacts of a range of minimum flows at the
which Pakistans uses would be determined at the moment
KHEP dam on, (for India), (a) power generation at the KHEP;
that India communicates a firm intention to proceed with
and (b) environmental concerns from the dam site at Gurez to
a project, the Court observed that identifying a critical date
the Line of Control; and, (for Pakistan), (a) power generation
will often be difficult, but that it may be possible to identify
at the NJHEP; (b) agricultural uses of water downstream of the
a critical period in which design, tenders, financing, public
Line of Control to Nauseri; and (c) environmental concerns at
consultations,
and downstream of the Line of Control to Nauseri.
environmental
assessments,
governmental
approvals and construction come together to indicate a firm

intention to proceed with a project. Nevertheless, the Court
THE SECOND DISPUTE
noted that a solely critical period approach could result in a

race in which each Party would seek to create uses that would
freeze out future uses by the other, an outcome the Court
1. The Admissibility of the Dispute over the Depletion of

Reservoirs below Dead Storage Level
rejected.
Insofar as India had raised two objections to the
Having considered the approaches advocated by the
admissibility of the Second Dispute, the Court considered,
Parties, the Court concluded that neither the ambulatory nor
first, whether Pakistan had followed the Treaty procedure for
the critical period approach were fully satisfactory and that the
the submission of disputes to the Court; and second, whether
proper interpretation of the Treaty combines elements of both.
the Second Dispute, given its subject-matter, could properly
The Court considered that it must first establish for each of the
be heard by the Court. With respect to the first question, the
KHEP and the NJHEP the critical period in which the Parties not
Court observed that the Treaty provides for disagreements
only planned the projects, but took concrete steps toward their
between the Parties to be resolved either by a seven-member
realization. Reviewing the evidence provided by the Parties, the
court of arbitration or by a single, highly-qualified engineer,
Court concluded that the KHEP reached this period in 2004
acting as a neutral expert. The Court concluded that the neutral
2006. In contrast, the Court found that Pakistan demonstrated
expert process is given priority only if one or the other Party
a comparable commitment to the NJHEP in 2007 and 2008.
has in fact requested the appointment of a neutral expert. In
Given this timing, the Court decided that Indias right to
the present case, neither Party made such a request and the
divert the waters of the Kishenganga/Neelum by the KHEP is
Court was therefore not precluded from hearing the Second
protected by the Treaty.
Dispute. With respect to the second question, the Court found

that although the Treaty specifies the technical matters that
However, the Court also decided that Indias right to
may be referred to a neutral expert, it does not give the neutral
divert the Kishenganga/Neelum is not absoluteit is subject to
expert exclusive competence over these listed matters. Once
the constraints specified in the Treaty and, in addition, by the
constituted, a court of arbitration is empowered to consider
relevant principles of customary international law. Paragraph
any question arising out of the Treaty, including technical
15(iii) gives rise to Indias right to construct and operate
questions. Having rejected both objections, the Court found
hydro-electric projects involving inter-tributary transfers, but
that the Second Dispute is admissible.
also obliges India to operate those projects in such a way as to

avoid adversely affecting Pakistans then existing agricultural
and hydro-electric uses. Both Parties entitlements under the
2. The Permissibility of the Depletion of Reservoirs for

Drawdown Flushing
Treaty must be made effective so far as possible. The Court

therefore found that Pakistan retains the right to receive a
In approaching the merits of the second dispute, the
minimum flow of water from India in the Kishenganga/Neelum
Court observed that the question of reservoir depletion is
riverbed at all times. The Court noted that this right also
linked in the Parties disagreement with the permissibility of
stems from customary international environmental law, and
controlling sediment through the procedure of drawing down
that it considered that the Treaty must be applied in light of
the reservoir and flushing accumulated sediment downstream.
contemporary international environmental law principles.
The Court briefly reviewed the process of sedimentation in the

reservoirs of hydro-electric plants and the various techniques
In this context, the Court recalled the commitment made
available for sediment control, including drawdown flushing.
by Indias Agent in the course of the hearing that India would
The Court then examined three aspects of the context of the
ensure a minimum environmental flow downstream of the
Treaty with respect to drawdown flushing. First, the Court
KHEP at all times.
observed that one of the primary objectives of the Treaty was
16 YAR JULY 10, 2013
to limit the storage of water by India on the Western Rivers
testimony of the experts presented by them, the Court observed
and that the Treaty includes strict restrictions on the volume of
that drawdown flushing is only one means of sediment control
storage permitted to India. The Court noted that in contrast,
and concluded that hydroelectricity may be generated without
the volume of Dead Storage is not controlled, suggesting that
flushing.
such storage was not intended to be subject to manipulation.

Second, the Court noted that the Treaty includes design
Finally, insofar as certain hydro-electric plants are under
restrictions on the low-level outlets that would be required to
construction or have been completed by India, the Court
deplete a reservoir and that these restrictions make sense only
stated that its decision on the Second Dispute may not be so
if depletion is also restricted. Third, the Court recalled that the
interpreted as to cast doubt retrospectively on any Run-of-River
Treaty drafters intended for India to have the right to generate
Plants already in operation on the Western Rivers, nor as to
hydro-electric power on the Western Rivers, and noted that
affect retrospectively any such Plant already under construction
this right must be given effect by allowing Indias hydro-electric
the design of which (having already been duly communicated
development to be sustainable.
by India under the relevant provisions of the Treaty) has not

been objected to by Pakistan as provided for in the Treaty.
Reading the provisions of the Treaty in light of these

contextual aspects, the Court concluded that the Treaty prohibits
Conclusion
depletion below Dead Storage Level of the reservoirs of Run-of

River Plants (and, correspondingly, drawdown flushing) through
This is the first time that a dispute under the Indus Waters
reference to a provision of the Treaty Annexure dedicated to
Treaty which is a rather significantly persistent legislation that
storage works, which states that the Dead Storage shall not be
is surviving many wars for over 50 years now, has been referred
depleted except in an unforeseen emergency. The Court also
to arbitration. From the view point of international law and
noted that the Treaty includes restrictions on the permissible
international relations, arbitration as a means for dispute
variation in the volume of flow in a river above and below a
settlement between India and Pakistan holds a lot of promise.
hydro-electric plant, and that these restrictions may also be

incompatible with drawdown flushing in certain reservoirs and
in certain flow conditions.
To complete its analysis, the Court examined whether the
sustainable generation of hydro-electric power on the Western
Rivers is possible without drawdown flushing. After reviewing
Veeraraghavan Inbavijayan (www.inbavijayan.com)
the technical documentation submitted by the Parties and the
and Kirthi Jayakumar
17 YAR JULY 10, 2013
THE AFTERMATH OF THE REVOLUTION:

An assessment of the compatibility
of the tunisian law for international arbitration
with general contemporary practice
in international commercial arbitration
By Henry Clarke1
ABSTRACT
of academic study in the field.2 This growth has tied in with the
acceleration of globalisation in commerce since the end of the
This article assesses the need for reform of

Tunisian international arbitration law as a dispute resolution
measure
for
Tunisias
international
trade
and
Cold War; with more international trade investment there is an

increased need to resolve international business disputes.
inward
investment. The areas considered are contrasted to the
Not all disputes may be resolved informally by negotiation
original and revised UNCITRAL Model Law on International
between the parties. It may also be complex, costly and risky
Commercial Arbitration and occasionally to other national
to litigate in courts in various jurisdictions whose reputation
arbitration laws or considered as topics notably absent from
for efficiency, probity and impartial law may not be accepted
the Model Law such as public policy, liability of arbitrators and
by one or all the parties. ICA provides an alternative, private
arbitral institutions, multiparty and multi-contract arbitration,
dispute settlement forum to a national court. It is selected
set off, confidentiality, and costs and fees. The conclusions are
and controlled by the parties and resolves the parties rights
an agenda for reform of the international arbitration law for
and obligations through decisions of arbitrators in a final and
Tunisia and the Arab world more widely.
binding manner with only loose supervision by national courts.
1. INTRODUCTION
This flexibility is favourable to the Middle East and

North Africa.
As the dust settles on the Arab democratic
International commercial arbitration (ICA) has grown
upheavals it may be that these newly democratic countries try
in importance since the 1980s. It has sustained the creation of
to meet the demands of their young and growing populations
specialist arbitration practice groups in leading international law
for prosperity through increased international business. If this
firms, the proliferation of academic journals and the expansion
happens depends on various factors including the possibility
18 YAR JULY 10, 2013
of resolving business disputes efficiently and reliably. In this
Foreign Arbitral Awards 1958 (NYC), along with the success
bid for prosperity, ICA may provide an important fine tuning
of the 1976 Rules, the need to harmonise the diverse and
instrument for trade and investment in these countries.
sometimes stringent requirements of national arbitration laws
However, divergences amongst national provisions in arbitration
was seen as the next ICA project.10 When UNCITRAL decided
law create uncertainty and risk in ICA thus affecting its viability.
to try to harmonise national arbitration law, a Protocol to the

NYC was proposed via a convention.11 However, on further
This dissertation concentrates on Tunisia, the first
consideration UNCITRAL decided on the flexibility of the
Middle Eastern state to experience revolution and its aftermath
model law format.12 Arguably this approach neatly followed on
in the recent upheavals in the Middle East. Because of this
from the consultative process used to produce the 1976 Rules
clear change of political regime and the economic aspirations
as a set of rules for adoption rather than as rules rigidly to be
expressed by the Tunisian people during the revolution in
imposed in arbitration practice.
demonstrations, Tunisia can be seen as pioneering and thus

worthy of focused study.3 The countrys relationships with
The Model Law
foreign investors and markets will be critical to the rate of

national economic growth in the future. This will be influenced
The Model Law is not a classic form of international
to some degree by the legal framework in which foreign
vehicle for harmonising ICA law. The convention historically
investors and Tunisian business people operate, which includes
has been the default method as borne out by the Geneva
the resolution of disputes. An important part of this will be the
Protocol 1923, Geneva Convention 1927, NYC, European
use of ICA under Tunisian arbitration law, thus this dissertation
Convention 1961, Washington Convention 1965 and the
will examine the suitability of Tunisian arbitration law for ICA.
European Convention providing a Uniform Law on Arbitration

1966 (Uniform Law). A convention is intended to unify law
2. SOURCES
through agreeing binding obligations. It comes into force after

a requisite number of states ratify it. Conventions are useful
To assess the suitability of the Tunisian arbitration
when a high degree of harmonisation of law is sought by states.
law for ICA, this dissertation will consider the original and
Reservations or declarations by states relating to conventions
revised United Nations Commission for International Trade
are permitted by international law, however UNCITRAL
Law (UNCITRAL) Model Law on International Commercial
practice has been to prohibit such qualifications or limit them
Arbitration (Model Law or ML) before comparing and
in its convention negotiations so as to produce a high degree of
contrasting it to the Tunisian international arbitration law. The
unification in the negotiated areas.13
Model Law was original published in 1985 and subsequently

widely adopted by states across different legal traditions in
A model law is a simpler document than a convention.
efforts to update arbitration laws. The Model Laws revision
It does not require a diplomatic conference. There is not the
in 2006 is witness to the degree to which the original Model
stark risk of failure inherent in conventions through trying
Law has been used and discussed within ICA thus generating
to implement a rigid structure. The Uniform Law being
the demand for its revision so it can continue to cater for the
implemented only by one signatory is such an example of
evolving needs of parties. References will sometimes be made
the failure of a convention.14 There is no need to wait for a
in this dissertation to other national arbitration laws when
threshold number of ratifications before the document becomes
novel solutions to issues have been applied in aid of ICA in
enforceable. It is less costly to produce in terms of elaborate
a different manner to that of the Model Law or in areas not
diplomatic conferences. Model laws as recommendations for
covered by the Model Law.
law have greater freedom for states to accommodate the new

international norms in their domestic law.
3. UNCITRAL AND THE 1985 MODEL LAW
Unlike treaties,
compromises do not have to be reached between negotiating
UNCITRAL
states to ensure agreement, signature and enforcement; a model

law is not an obligation on a state as a finished document, but
Establishing UNCITRAL in 1966 was a step forward in
merely a recommendation of good practice.
efforts to harmonise national commercial laws which eventually

led to the Model Law.5 ICA was considered as being within
A model law may omit local legal terminology by using
its remit. UNCITRALs first ICA success was the UNCITRAL
descriptive language.15 The drafters of the Model Law took
Arbitration Rules 1976 (1976 Rules).7 The Rules resulted
account of the descriptive language and content of the successful
from considerable liaison with arbitral institutions and experts
NYC and the 1976 Rules, the latter being recognised as a neutral
as well as much negotiation between common law and civil
and comprehensive set of rules.16 In turn, by using such language
law lawyers from developed and developing states. In ICA
in a consistent manner with these instruments, the UNCITRAL
the 1976 Rules have been widely used in ad hoc arbitrations.
Working Group buttressed the established position of these
They have also been widely used, referred to and adapted by
instruments as pillars of the architecture of ICA.17 Furthermore,
arbitral institutions.9 They were updated in 2010 to retain their
it clarified various points in the NYC such as written form,
relevance to international arbitration.
compatibility of interim measures with an arbitration agreement
and the choice of law.18 This language and model law structure is
With the increasing number of ratifications of the New
also educational in layout and drafting, whilst being suitable for
York Convention on the Recognition and Enforcement of
legislation.19 Legislative guides may even be produced alongside
19 YAR JULY 10, 2013
a model law, as is the practice of UNCITRAL.20
arbitrators and courts for interpretation on adoption of the

Model law.28 Lord Dervaird in the Scottish context has noted
States can take elements or modify elements of the
regarding the extensive travaux prparatoires:
Model Law for enforcement to enact internationally compatible

legislation.21 Thus it enables improvement of national laws via
It appears to the Committee that there may be
adoption so jurisdictions which have not legislated in that field may
circumstances in which in order that any matters of doubt or
quickly attain international norms in that field, whilst catering for
ambiguity can be resolved in accordance with the spirit of the
local circumstances. They also enable sophisticated jurisdictions
Model Law parties should be entitled to draw the attention
in that field to reconsider and, if necessary, amend their laws.
In
of the court to the Travaux Preparatoires which went into
other words model laws are a systematic attempt to create best
making of the Model Law. In this regard the Committee thinks
practice in potential legislation based on various laws, practice and
it appropriate that some legislative reference should be made to
legal scholarship. Thus when a model law is adopted wholesale, or
this matter, in order to avoid the doubts generally in Scots Law
nearly so, it is all the more conscious a step to take in modifying
as to the extent to which regard may properly be had to such
the law; a break with the past sends out a clear message of the
matters in construing legislation.29
22
23
intent of the lawmakers to regulate the particular subject matter

in accordance with international best practice.
Thus it is acknowledged that the Model Law preparation

had much more consideration than a national bill typically does
At the time of the negotiation of the Model Law
before being approved as law. In addition, the UNCITRAL
between 1979 and 1985, the laws of many jurisdictions did
Secretariat to a degree assists national legislators in adopting
not appreciate the features and processes of ICA cases. Even
the Model Law.30
equal treatment with domestic arbitration did not sufficiently

serve ICA. This was due to inappropriate domestic provisions
Furthermore, when updating a national arbitration
applying to ICA and foreign parties not being familiar with
law, legislators have taken the Model Law into account.31 A
domestic law on arbitration.24 By contrast, uniformity and
new national arbitration law should contain a number of
predictability in arbitral procedure was thought to reduce risks
provisions modelled on the Model Law.32 It is aimed at enabling
in conducting international business thus foster international
jurisdictions to have comparable national arbitration laws
business relations.
that minimise local peculiarities not justified for ICA.33 This

is because the negotiators strove for widely acceptable and
A good ICA law is clear and known:
workable solutions.34 Modifications of the Model Law should
This knowledge factor (or high-fidelity factor)
be minimal to gain the maximum effect from adoption, the
should be taken into account by any State desirous of hosting
high fidelity factor so Lord Dervaird continued:35
arbitrations, not only arbitrations in which one of the parties is

from the host State but also other international arbitrations in
While certain changes to the Model Law are necessary in
which all parties are foreign. Conversely, it would help parties
every country in order to accommodate it to the legal structures
from the host State if an arbitration in which they might be
of that country, the main object of the Model Law is to provide
involved in another State were governed by the same or a
a framework for arbitration which is readily understandable by
similar law familiar to them. . . .
people of very different legal cultures. Accordingly, the Committee

recommends that any legislation to give effect to its proposals
The
above
considerations
suggest
certain
major
should depart from the language of the Model Law only where
conditions that an acceptable law for international commercial
essential. This is the course of action which has been taken in
arbitration should meet. It should be of good quality, with
those countries which have already adopted the Model Law.36
solutions that are both sound and suitable for the specific needs
of international arbitration; it should be easily recognisable by
Furthermore, the Model Law is based on the jurisdiction
and understandable to foreign users; and, building on these two
providing a service to ICA, so adaption should be more of a
conditions, it should be similar to the law of many other States
refinement than alteration:37
embodying generally recognised principles.25

Arbitration rests on confidence in the arbitration laws
The UNCITRAL Working Group included the input
of the venue, and both parties to an international contract
of dozens of states and many arbitration institutions and
primarily only have confidence in their own laws and misgivings
other interested organisations. It is robust for having been
about those of the other. The present result is, therefore, a
drafted in consultation with experts across the world and in
tussle which is often resolved in favour of some neutral venue
conjunction with states with a wide variety of legal systems
in a country with whose laws neither party is really familiar;
and economies. The Model Law has crossed the divides of
... The concept underlying the Model Law is to put an end to
civil law and common law, the Islamic and non-Islamic and
this state of affairs by widening the parties choice of venue,
the developed and developing world.
Its international origin,
and thus their choice of arbitration clauses for incorporation
design and acceptability is part of its attraction for adoption
into their contracts. In so far as a country will have enacted
as is its ease of use by foreign counsel, arbitrators or parties.
legislation based on the Model Law, both parties will be able to
This diverse and detailed input is reflected in the extensive
find it easier to accept arbitration in that country, because they
26
27
travaux prparatoires which may be used by legislators, counsel,
will know basically where they stand. 38
20 YAR JULY 10, 2013
No particular article of the Model Law has repeatedly
Model Law may regulate domestic and international arbitration
39
been amended, thus indicating a generally acceptable law.
thus harmonising two regimes and enabling parties to opt into
An added benefit of adoption of the Model Law with minor
one regime from the other.49 It may be adopted by developed
alterations is the option for courts to rely upon the existence
states to update existing laws using the freedom to vary the
of extensive commentary, including guiding case law on Model
text inherent in the model law concept.50 With adoption there
Law provisions from many jurisdictions in the resource called
would be a welcome public relations effect; the Model Law is
Case Law on UNCITRAL texts (CLOUT). Case law can also
known and generally approved by arbitrators and counsel in
be found in ICCAs Yearbook Commercial Arbitration and the
ICA practice, and so it sends a positive signal to parties, legal
Model Arbitration Law Quarterly Reports. Recently, UNCITRAL
professionals and arbitrators that a jurisdiction welcomes the
also produced a digest of case law on the Model Law that will
resolution of disputes by international arbitration.
40
be of great use in Model Law adopting jurisdictions. Such case

41
law and commentary reduce the risk of interpreting Model Law

definitions and articles in diverging ways across jurisdictions.
The Model Law has been described as an ambitious

project51 and standing beside the NYC in significance in
the arbitration world52 with the 1976 Rules have similar
The Model Law as a national law meets all three
significance.53 The Model Law has proven to be a viable
necessary conditions for a good arbitral seat. It is harmonised
alternative to creating a convention through its balance of
with other national laws, understandable to foreigners, and
consensus drafting and flexibility for adoption.54 This has
amenable to ICA. The Model Law emphasizes party autonomy,
been enhanced by its revision in 2006 to ensure it retains its
but is limited by certain mandatory provisions preserving
relevance with the evolution of ICA. By 2006 the requirements
due process.
As the Model Law states, it is subject to any
of parties to arbitration had evolved from those of 1985 and
multilateral or bilateral agreement which has effect in the
areas of further harmonisation were considered feasible. The
jurisdiction.
revised elements of this law are also considered in the analysis
42
43
Arguably this is not necessary, but the wording
declares for the avoidance of doubt that it is a law relating to
of this dissertation.
international subject matter, that international instruments do

relate to the arbitration law and that international treaties and
conventions are also a means of harmonising law.
4. CONTEXT OF THE TUNISIAN ARBITRATION
44
Turning to the Tunisian international arbitration law,

The advantages of the Model Law to an adopting
jurisdiction are lengthy.
45
It is a finished text for adoption and
available in six languages
it is set in the Tunisian legal system which originates from

Islamic and civil law. The civil law derives from the creation
with wide coverage of ICA issues
of the French protectorate in 1881 that led to a written legal
structured in a manner following the stages of ICA. It covers
system.55 This civil law tradition was retained on independence
the essential issues and contains straightforward language.47
in 1956,56 however there is potential for a modernised Tunisian
The Model Law has been favourably received and adapted
national arbitration law based on the civil code tradition to
across the world.
accommodate Islamic values in the conduct of the arbitration.57
48
46
One national arbitration law based on the
21 YAR JULY 10, 2013
With increasing demands for democracy, reform of the law
effective arbitration such as the separability of the arbitration
must reflect cultural values for it to have legitimacy. This
agreement, party autonomy and competence-competence.65
may include justification on Sharia grounds for the changes.

Fortunately for lawyers there is much to consider in Sharia
The present law consists of three chapters. The first chapter
to create such justification through its various legal schools of
covers common rules with an influence from the Model Law. The
thought. Yet, the success of the Model Law adoption in Egypt
second chapter covers domestic arbitration. The third chapter is
and the use of arbitration rules based on the 1976 Rules at the
based on the Model Law and covers international arbitration. It
Cairo, Nigeria, Kuala Lumpur and Tehran regional arbitration
refers back to the first two chapters on occasions.66
58
centres indicates arbitration law reform need not be diverted

into religious law debate in the Islamic world to provide a list of
There are some advantages to having a domestic and
areas for possible reform in Tunisian law to enhance recognition
international arbitration regime in national law. There is
and understanding of the law internationally.
clarity in knowing the domestic and international status of a

particular case.67 Parties can opt into international arbitration
This is contrary to a fear that has been expressed by some
from domestic arbitration: this gives parties the opportunity
commentators that widespread adoption of the Model Law
to opt into and experience the international regime, positive
indicates a lack of cultural sensitivity.
Culture is important in
experiences of which may assist in generating support for
business and dispute resolution so sensitivity needs to be used
domestic arbitration reform.68 Domestic pressures may make
to accommodate the business circumstances. In the context of
it harder to carry out change in domestic arbitration. This
globalisation with the demand of ease of conducting business by
may be especially apt if the domestic regime can act as an
international investors on one hand and businesses acting for
alternative arbitration method catering to local legal issues
the aspirations of the youthful, poor population of Tunisia on
using specific cultural understanding on issues that might vary
the other, cultural accommodation may be best supported by
from international perspectives, such as the independence
60
means of the administration and conduct of arbitration cases.
and impartiality of arbitrators or the extent of a right to an
Good practice in this field can be identified from the actions
oral hearing. Having experienced the reformed international
of well-known arbitral institutions like the London Court of
arbitration regime, it may then be politically easier to introduce
International Arbitration (LCIA) which has set up local offices
a reformed domestic arbitration regime.
59
in the West Indies and became a partner in a local arbitration

institution in Mauritius which broadly follows the LCIA Rules in
However, uncertainty can occur in the structure of
its own arbitration rules. In such centres the recruitment of staff
separate domestic and international arbitration regimes. This
with appropriate language skills, local qualifications and religious
can be avoided by not using cross references from sections of
beliefs aid understanding. Arbitrators should consider the merits
one regime to sections of the other regime in the law. This then
of cultural training and be helped in obtaining this by institutions
creates effectively two laws. Sanders prefers one arbitration
they are associated with. Such measures in combination support
law rather than a domestic and international dichotomy.69 It
the benefits of ICA whilst accommodating local concerns.
provides a uniform, high fidelity factor for parties. As Sanders

states, one regime for both can be successful as it has been
Relating to culture, it is interesting to note that Tunisia
in Germany and the Netherlands.70 Tunisia has had 19 years
adopted the Model Law to replace an earlier arbitration code
of Model Law based ICA. It would now seem appropriate,
which had great similarities to the French arbitration law
after this period, the recent political upheaval and the need
prior to the 1981 French reforms.
for significant and long term economic growth to debate the
61
French law was generally
supportive of international arbitration prior to 1981.
This
was particularly based on the approach of the courts and their
integration of Tunisian domestic and international arbitration

law into one arbitration law based on the Model Law.
inventive capacity rather than due to the incomplete, opaque

and confusing articles in the Code of Civil Procedure relating to
5. ANALYSIS OF THE TUNISIAN INTERNATIONAL
international arbitration. This inventive capacity consequently
ARBITRATION LAW IN THE LIGHT OF THE MODEL LAW
resulted in complex, even contradictory, case law as the courts

attempted to produce the appropriate results on each occasion.
In contrasting Tunisian law with the Model Law, this
Even issues like the powers of a tribunal to decide by amiable
dissertation considers only those Tunisian articles requiring
composition were not clear.
reform in the order in which the subject matter is dealt with
62
in the original and revised Model Law. Thereafter it considers

Against this French influenced background the 1993
issues not covered by either the original or revised Model Law
Tunisian law was an achievement as it ended disputes about: the
nor adequately covered in Tunisian law. The first issue relates
validity of clauses; the power to enter into arbitration agreements;
to definitions.
specific features of procedures; and the enforcement of awards.
63
The Model Law adoption demonstrated Tunisian government

support
for
harmonising
rules
governing
international
arbitration rather than following a more bespoke arbitration

law reform as France did in 1981.
Definition of Commercial
The Model Law does not define commercial, but there
The Model Law adoption
is a footnote suggesting wide interpretation.71 The Tunisian
by Tunisia significantly changed the Tunisian courts approach
arbitration law excludes the definition of commercial to
to arbitration. The courts consistently applied key concepts of
broaden its application to include civil and mixed subject
64
22 YAR JULY 10, 2013
matter for arbitration.72 Therefore it seems unnecessary in
continuing the arbitration pending a court decision in such
Tunisian article 48(1) to include a definition of commercial.
circumstances. This follows the free choice philosophy behind
Arguably this should be removed in a future law reform.
the Model Law in the use of courts and tribunals.85 Any reform
73
of Tunisian law should fully apply this free choice approach

The arbitration agreement
to maximise the prospects of efficient conduct of arbitration.

Furthermore, when the Tunisian Court of Appeal has to
On moving to key arbitration concepts, the original ML
decide whether to refer a matter to arbitration, it should be
Article 7 regarding an agreement to arbitrate in writing was
able to show a pro-arbitration stance on a limited review of
closely modelled on the wording of NYC article II. Article 7
the arbitration agreement as happens in most sophisticated
adds to this by referring to an exchange of claim and defence
arbitration jurisdictions86 and aid efficiency by fixing a time
statements as an arbitration agreement.74 Also, a reference in a
limit for the arbitration to commence if one has not already
contract to another document containing an arbitration clause
been fixed by the parties, the tribunal or arbitral institution.87
constitutes an agreement to arbitrate disputes.75 Electronic

forms of communication were not considered in the 1985 Model
Tribunal composition
Law, although writing in article 7(2) was expanded to include

forms of telecommunication.76 Thus article 7 broadens article
II NYC.
77
The in writing requirements were a significant part
of the 2006 review of the Model Law.
Moving to the tribunal, Tunisian law avoids the issue

of an impasse caused by arbitrator disagreement by having an
New article 7 option
odd number of arbitrators in a fully constituted tribunal.88 This
1 in article 7(4) extensively defines electronic documents by
contrasts with ML article 10(1) that permits even numbers
illustrative example.
of arbitrators if agreed by the parties. The Tunisian Court of
78
Appeal appoints arbitrators if parties fail to do so. The tendency

To absorb the current context of ML article 7, Tunisian
has been to appoint judges; no approved arbitrator list is
article 6 needs to refer to electronic communication. Electronic
maintained by the court system.89 Under article 56(5) there
mail is included in the Tunisian adoption of article 7(4) by virtue
is no appeal from the decision. A more ICA friendly method
of an amendment of the Code of Obligations and Contracts which
may be to follow Mauritius in selecting a prominent arbitral
considers a document as written once the electronic document
institution such as the Permanent Court of Arbitration to give
is saved and signed electronically.
Nevertheless, it might be
it an arbitrator appointing function.90 This could entice such an
clearer to foreign parties if the arbitration law was specific on the
ICA institution into being permanently present in Tunisia and
point in the spirit of a self-contained law for the use of foreign
thereby develop Tunisia as an international dispute resolution
parties as advocated by Hermann and Kerr.
The revised ML
venue. Alternatively a domestic arbitration institution could be
article 7 option 1 should be considered for adoption by Tunisia
revitalised with the role.91 In light of the lack of a well-established
to fully benefit from the widest scope for an agreement in writing
domestic arbitral institution with primacy, consideration
to arbitrate. This option is in keeping with Tunisian legal heritage
could be given to inviting an international arbitral institution
by referring to arbitral clauses and agreements, which ML option
as a statutory appointing authority with the prospect of the
2 does not make explicit, through that radical broad definition of
institution setting up a permanent office in Tunisia.
79
80
81
agreement does not even need to be in writing.

Challenge to an arbitrator
Court support
Arbitrators appointments may be challenged by parties
On examining the necessary tribunal court relationship
under Tunisian article 58. The challenge must be made within
for arbitration, it is clear the Tunisian arbitration law adheres to
15 days of the arbitrator appointment or the party becoming
ML article 5 in through article 51. The court powers are those
aware of the ground for challenge. It can be to an arbitral
set out in the arbitration law. The Model Law accelerated a
institution under article 58(4), thus making it compliant with
trend to minimise court intervention in ICA through its defined
ICC Rules and other rules that require an arbitral institution to
and balanced system of court supervision.
consider arbitrator challenges.92
82
UNCITRAL
consideration was given to excluding courts entirely. This would

have hindered party freedom to choose interim measures from
Notwithstanding this, Tunisian law under article 58(3)
the court or the tribunal. The choice is also a practical matter in
permits a dissatisfied party to apply to the Court of Appeal if
light of the limitation on the tribunals powers of enforcement,
the other party does not accept the challenge or the arbitrator
especially in relation to third parties.
in question rejects it. This must be done within 45 days of the

rejection. Meanwhile the arbitral proceedings are stayed. In
ML article 6 requires a designated court for ICA decisions.
justification it is argued the tribunal is based on contract and
The Tunisian court appointed for international arbitration
has a collegial atmosphere in it, so for a tribunal to make such
duties is the Tunis Court of Appeals where a decision is made
a decision damages the relationships within the tribunal hence
within 3 months of request regarding validity of an arbitration
the role of the court in these decisions.93
clause or agreement.83 Tunisian article 52 does not say the

arbitral proceedings continue pending a court decision.84 The
It is questionable if the Tunisian court process in this
Model Law position under article 8(2) is more practical and
instance is a good use of legal resources; the arbitration case is
flexible in its allowing the tribunal to judge the wisdom of
suspended during the court arbitration challenge hearing under
23 YAR JULY 10, 2013
article 58(3). To always give the court final responsibility for
The power and capacity to order interim measures
challenges to arbitrators puts dispute resolution matters back in
span the roles and powers of tribunals and courts. Tunisian
the hands of the court when the aim was to lighten the workload
article 62 on interim measures corresponds to the original ML
of the courts and for the parties to resolve their own disputes.
article 17 regarding tribunal ordered relief.
The challenge decision can be reviewed at a later stage, namely
54 corresponds with the original ML article 9 regarding court
at a set aside application and/or at enforcement proceedings if
ordered interim relief. Article 62 allows the tribunal to make
they wish. When the court does consider the matter, it may
interim and conservatory measures deemed necessary.
Tunisian article
well have less knowledge than the remaining arbitrators of the

context of the challenge or an associated arbitral institution
Interim measures facilitate the operation of the arbitration
such as the ICC. The 45 days taken by the court to resolve
by avoiding loss or damage and stabilising the parties relationship
an arbitrator challenge at an early stage is also unnecessarily
for the duration of the arbitration.100 Interim measures in
lengthy when compared to the Model Law 30 day limit for
the preparation of the original Model Law caused much
a court application and so may encourage dilatory tactics by
controversy.101 UNCITRAL decided against including provisions
a party.94 Arbitrators in ICA are increasingly a professional
for the scope or enforcement of interim measures in the original
cadre, as are counsel in ICA, thus robust enough to consider
article 17; implementing states could find appropriate methods
challenge applications when sitting in tribunals. Therefore the
for their jurisdictions.102 Tunisia added to original ML article 17
role of the court may be unnecessary in this decision in some
by stating that if a party does not comply with a tribunal order,
cases so parties should be able to opt out of this requirement of
the tribunal may go to court.103 This exists because there is no
Tunisian law in the arbitration agreement.
other mention of tribunal enforcement powers relating to interim

measures in the Tunisian arbitration law.104 It should also be
Resignation or incapacity of an arbitrator
noted that in Tunisia a summary judge has jurisdiction to order

any provisional or conservatory measure within his jurisdiction
Appointed arbitrators may resign under the Tunisian
provided that the tribunal has not been constituted.105
law and the Model Law. The resignation of a party appointed

arbitrator could be conducted to obstruct proceedings. This
Malouche has argued that court ordered interim
scenario is not dealt with by the Model Law nor in Tunisian
measures run counter to tribunal powers in article 62.106 He
law.95 ML Article 15 substitutes an arbitrator who fails to act.
also believes Tunisian domestic arbitration article 19 would be
Similiarly, if an arbitrator dies, he is replaced and the arbitration
appropriate in ICA: there should be no court interim measures
continues.
The substitution is to be by the same method
once the tribunal is constituted.107 A more functional position
of selection as the first arbitrator. None of these solutions
depends on what parties require. The tribunal may not have
guarantees improved tribunal performance. Selection in itself
power to provide interim measures relating to third parties for
delays matters, after which the replacement arbitrator may act
example, hence an application to court for interim relief may be
in a dilatory way. Then there is a risk of justice delayed being
appropriate during arbitral proceedings.
96
97
justice denied.
Yet in some jurisdictions courts may only provide
A preferable option would be to have a decision by a
interim measures for cases seated within the jurisdiction.108
truncated tribunal when the truncated tribunal suspects
Consequently harmonisation regarding interim measures was
deliberate obstruction. This option exists in some institutional
increasingly seen as necessary.109 There has been an increase
rules.98 One option to support this may be for Tunisian law
in requests for interim relief over the years highlighting the
to provide for a court application by a truncated tribunal to
need for reform because business has become more global.
empower them to render an award. A court could then consider
Parties have also an increased understanding of their rights and
the reasonableness of this option in each instance whilst the
options.110 Where the law is uncertain, arbitrators are likely
arbitration may proceed under the tribunal discretion until any
to be cautious in giving interim measures and parties may not
court rejection of the application occurs. If the application
risk asking for interim measures. This is not desirable where
is rejected, a third arbitrator could then be appointed by the
the court option may be longwinded.111 Thus inclusion of
appointing party so a full tribunal to continue the arbitration.
interim measures issuance and enforcement was considered but

declined by the UNCITRAL Working Group for the revised
Tribunal jurisdiction
Model Law.112
The established tribunal has the competence to decide its
The revised Model Law amended article 17 and inserted
competence to determine a case under Tunisian article 61. An
articles 17A-17J. These elaborated tribunal power to award
action by a party in court within 30 days of the unfavourable
interim measures concurrent with that of the courts.113 The
decision suspends the arbitration unlike the Model Law. The
UNCITRAL Working Group considered it desirable to have
court must give a decision within 3 months.
In the interests
clauses considering the terms, conditions and circumstances
of efficiency the tribunal should have the discretion to proceed
of the issuance of interim measures.114 There was much
with the case as ML article 13(3) permits whilst the court
discussion of the extent of court and arbitral tribunal powers
application is heard.
and the procedures that should be followed by them.115 A flexible
99
approach was adopted in new articles for generic, broad categories

Interim measures
of urgent, ex parte preliminary orders and more considered
24 YAR JULY 10, 2013
interim measures which are illustrative of what can be ordered.116
injunctions and to avoid dissipating assets. To provide powers
The revised Model Law requires circumstances whereby the
consistent with party expectation in contemporary ICA, Tunisia
interim measures avoid imminent harm or prejudice, create a
should consider adopting articles 17-17J of the revised Model
balance of hardship or preserve assets or evidence.
Law with the additional provisions of Singaporean law.
117
There is
also the requirement for a reasonable possibility of success on the

merits of the claim, and to avoid predetermination of the merits
of the case.
Generally, ex parte preliminary orders are permissible
The measure must be for a harm that cannot be
only in exceptional circumstances.123 There are opposing
adequately recompensed by damages and the measure must not
arguments to tribunals having this power: it is contrary to the
outweigh the harm caused by the measure to the other party.
trust and consensus inherent in the ICA process and outcome.
118
119
The right to a hearing is breached as one party does not have a

There appears to be a difference between interim
chance to put its case. Furthermore, parties should be equally
measures under revised ML articles 17(2)(a)-(c), and article
treated.124 Sceptics also note that the consensual nature of
17(2)(d). Article 17(2)(d) has a threshold akin only to the
arbitration means the tribunal must retain its impartiality and
extent the arbitral tribunal considers relevant, whilst articles
there is also the question the effective enforcement of ex parte
17(2)(a)-(c) indicate an obligation to provide interim relief to
measures by a tribunal or before a court.125 Some systems take a
an applicant party if the necessary threshold of evidence is met.
strongly pro-court approach and do not permit tribunal ordered
The threshold levels are sensible and not onerous. The arbitral
ex parte interim relief. India is one such jurisdiction.126 Others
decision may not be an award, but an order, but these categories
like Singapore differ notably from the revised Model Law in not
are judged by substance rather than name.
expressly permitting any ex parte interim relief.127
120
The enforcement of interim relief as orders and awards
Some commentators argue ex parte orders are compatible
was also discussed during the revised Model Law drafting;
with ICA; due process will be adhered to. Some situations, usually
articles 35 and 36 relate to awards only. No mechanism was
urgent, justify ex parte hearings to preserve evidence or assets.
included in the revised Model Law regarding enforcing interim
The safeguards on the degree of issuance of interim relief are:
relief.
In some quarters it was thought there was no need
at any time the tribunal may modify, suspend or terminate the
for enforcement of such issues. It was argued that the moral
order; appropriate security may be requested from the requesting
authority of the tribunal suffices to ensure performance.
party for the order;prompt disclosure required from the requesting
121
party of any change in circumstance; party liability for costs and

Yet such powers are given in the Singapore International
damages caused by the order may be required; and an obligation
Arbitration Centre and International Chamber of Commerce
on the party to tell the court of any termination, suspension
emergency arbitrator processes relating to the parties.
122
or modification of the interim order given by the tribunal.
Furthermore, Singapores International Arbitration Act gives
Although there are no enforcement powers of a tribunal for ex
wide powers to the tribunal to make orders for costs, discovery,
parte preliminary orders, a tribunal is likely to take a negative
preservation of property, securing sums in dispute, interim
view of a party not enforcing the order.128 On reflection there
25 YAR JULY 10, 2013
should be an explicit mention of the tribunal power to make ex
appointed experts prevalent in the common law tradition.134
parte preliminary orders in Tunisian arbitration law. This should
It would be helpful to include in the Tunisian law a provision
be in parallel to a party right to seek interim relief from the court
enabling party-appointed experts to cater for parties with
on the same criteria where tribunal power would not be effective
that expectation. In tandem, there should be a power for the
for enforcement of an order.
tribunal to order the party-appointed experts to convene before

the hearing to establish agreed points and differing views. This
In summary, Tunisian arbitration law reforms on interim
should then be reported in writing to the tribunal.135
measures should carefully consider adopting the revised ML

articles 17 and 17A-17J with the Singaporean International
Applicable law
Arbitration Act powers provided to the tribunal to order interim

relief. Tunisia may even consider going beyond it in permitting
In conducting arbitration it is essential for the tribunal
tribunals and courts to issue ex parte preliminary orders for
to apply an applicable law to the substantive issues in dispute.
case management efficiency.
The Model Law uses Washington Convention 1965 wording

to decide applicable law; such rules of law as are chosen by
Conduct of the proceedings
the parties.136 Under the Model Law the tribunal may choose
the law based on the conflict of laws rules it finds applicable.137
More broadly on procedural matters, the Tunisian law

gives freedom for parties to decide the procedure for arbitration,
Article 28(2) envisages the indirect route of conflict of laws for

finding applicable law by the tribunal.138
failing which the tribunal may decide it.129 This parallels ML

article 24 and article 19(2). Thus Tunisian arbitration law
excludes national procedural rules and rules of evidence.
130
It has been argued Tunisian article 73(2) regarding the

law applicable to the merits is more loosely worded than the
Model Law; when required the tribunal chooses a law that
Critics of this arrangement do not give due consideration
is most appropriate to the case.139 This opinion ignores
to the balance articles 63 and 64 paralleling ML articles 18
the significance of the term rule of law for choosing the
and 19. The articles preserve due process and equal treatment
applicability of transnational law and lex mercatoria to the
respectively.
matter.140
131
Moreover an arbitrator has a duty to render
an enforceable award. More broadly, standards of due process

are the standards at the place of enforcement and that is
In favour of Tunisian law it may be said that the reference
not always known in advance when a matter is resolved by
to law rather than law or rule of law, gives the parties some
ICA. Due process includes full opportunity in articles 63
certainty as to which applicable law may be chosen by the
for a party to present its case. This should be replaced by an
tribunal in such circumstances. On balance though, this does
appropriate opportunity to do so.
This would enable efficient
not counter the loss of the option for a tribunal to choose lex
management of arbitrations in all situations by tribunals and
mercatoria or transnational law. These are options that have
accord with the English Arbitration Act 1996, a well-used and
grown in sophistication and importance thus viability since
often referred to national arbitration law.
Tunisias Model Law adoption and thus an option to choose
132
133
a rule of law should be included in Tunisian article 73(2).141

When a party fails to play its part in proceedings there
is a difference between Tunisian article 70 and ML article 25
Terminating proceedings and making the award
covering this eventuality. Both articles 70(1) and article 25(a)

state a claimant failing to communicate its statement of claim
At the end of proceedings under Tunisian law arbitral
results in a tribunal terminating proceedings. Both article 70(3)
hearings must be formally closed by the tribunal as the date of the
and article 25(3) state that if a party fails to attend a hearing
closure of proceedings is the date after which challenges for the
or produce documentary evidence, the tribunal may continue
removal of arbitrators are no longer permitted.142 It is doubtful
the proceedings. Articles 70(2) and 25(c) differ regarding the
if this adds to procedural efficiency and may even hinder due
consequences of the respondents failure to communicate his
process by preventing justified late stage challenges to arbitrators.
statement of defence. Tunisian article 70(2) requires the tribunal
Therefore it should be removed in a future law reform.
to terminate proceedings without it being an admission of

the claimants case. ML article 25(b) allows the tribunal the
Matters following the issuing of an award
discretion to continue the case without the failure being an

admission of the claimants case. A business-like approach to
On turning to issues relating to the award itself, Tunisian
resolving the commercial disputes is better accommodated by
article 79 requires reciprocity of enforcement for applying foreign
the approach in ML article 25(b) which allows termination or
awards under the NYC.143 Article 79 is still an improvement
continuation, with continuation not being an admission of the
on the previous legislation which had ambiguous provisions
claimants case. This avoids wasting additional time and cost in
regarding recognition and enforcement of foreign arbitral
further negotiation, arbitration initiation or court action.
awards.144 Nevertheless it is questionable today how useful this

reciprocity is with almost universal ratification of the NYC.145
Another aspect of arbitration conduct is the use of experts.
Its amendment should be considered in any future law reform
The tribunal may in civil law tradition appoint an expert under
in light of the number of significant non-NYC ratifying states
the Model Law, but the Model Law does not mention party
in existence at that time, such as neighbouring Libya with
26 YAR JULY 10, 2013
which it has a bilateral treaty regarding recognition to which
of Tunisian international arbitration law.
article VII NYC applies enabling recognition and enforcement

Set Off
by alternative means to those specified in NYC.146

More broadly, Tunisian articles 79-82 restate the ML
Set off is an important issue for the parameters of statements
articles 35-36 on recognition and enforcement of arbitral
of case and for shaping the content of awards. It is not mentioned
awards, although it may have been more straightforward to have
in the Model Law nor the Tunisian law, although UNCITRAL
used the two article format of the Model Law.
This two article
Arbitration Rules 2010 (2010 Rules) regulates set off.160 It
structure should be considered in any law reform. ML Article
has been considered as an area for Model Law revision.161 Set
35(2) sets maximal conditions for obtaining enforcement
off ensures efficiency of proceedings between parties taking into
so the adopting state such as Tunisia may impose less strict
consideration claims and entitlements of the parties more broadly
standards for recognition and enforcement.
Essentially,
than solely the initial claims presented to the tribunal. Various
article 35 repeats article IV of NYC regarding recognition
jurisdictions have different approaches to set off: the French article
and enforcement.
ML article 36 aligns with NYC article V
1290 of the Civil Code applies set off to two countervailing debts,
regarding grounds for refusal of recognition or enforcement.
although French judicial procedure requires the declaration by a
The alternative article VII NYV method has already been
party of an intention to apply set off in a particular case. English
mentioned above.
law covers set off in three ways: procedurally; by abatement as a
147
148
149
150
form of set off available in particular types of contracts for damage

An award may be enforced in Tunisia if an application
there for set aside fails.151 Set aside must be applied for by a
suffered; and as an equitable measure.162 This short survey suggests

set off has very domestic foundations in law.
party within three months of the issuance of the award. This

makes setting aside impossible when it is based on a public
In contrast, as a procedural set of rules, 2010 Rules
policy ground that does not reasonably become known within
permit set off in connection with the relationship under
3 months of receipt of the award under Tunisian 78(3), such
scrutiny in the arbitration to enhance the value of the arbitral
as bribery involved in obtaining the award. An amendment is
award for the parties through its comprehensive coverage of
needed to cater for a limitation of three months after the public
the parties relationship.163 If Tunisian international arbitration
policy issue reasonably became known to the party.152
law is to deal with set off, it should do so in this procedural

matter and only permit it no later than the latest statements of
There are no Model Law provisions regarding what

happens after setting aside of an award. Many national laws are
silent on the subject.
153
case unless with tribunal permission after consideration of the

circumstances.
In Germany under art 1059(5) setting
aside makes the arbitration agreement operative again thereby

allowing the arbitration process to restart.
154
Public policy
Interestingly
Tunisian under article 78(5), where agreed by the parties, the
Continuing the commentary relating to awards, international
law allows a court to decide the case on the merits when the
public policy for recognition and enforcement respectively are
court has set aside the award under article 80(4). If necessary
covered in Tunisian articles 78(2) and 81(2). A distinction should
this can be done by amiable compositeur if that was the parties
be drawn between public policy and international public policy.
instruction to the tribunal.
Sanders prefers the novel Tunisian
Both relate to the acceptability of the subject matter for arbitration.
revival of jurisdiction of the court; it avoids the loss of extra
Recent scholarship argues that arbitrability concerns the natural
time and cost to go through arbitration process again.
What
limitations of arbitration as a means of resolving disputes whereas
has not been established is what happens if parties disagree
public policy focuses upon a more limited area, the prohibitions
about applying to court for it to decide.
Consideration in
to arbitration stipulated in a particular jurisdiction for example
that case should be given to the court being given the statutory
as reflected in ML article 34(2)(b)(ii) and article V(2)(b) NYC.164
power to grant the request on the application of one party.
International public policy is related to public policy.
155
157
156
It is a
reflection of public policy across jurisdictions. Transnational public

6. OTHER ISSUES FOR CONSIDERATION
IN ARBITRATION LAW REFORM
policy may be an alternative description of this. This may concern

procedural matters or a substantive matter in dispute. International
public policy is a means of avoiding nebulous public policy that
Despite its generally comprehensive nature, the Model Law
can be used by national courts to set aside or to reject enforcement
does not cover various issues that parties increasingly encounter
awards which on first glance appear unwelcome on their merits.
in ICA. These include: public policy; liability of arbitrators and
Thus an international arbitration award may pass assessment under
arbitral institutions; multiparty and multi-contract arbitration;
international policy scrutiny to be enforced, where as a domestic
confidentiality; set off; and costs and fees. Some of the provisions
award scrutinized under domestic public policy may fall foul of
added by Model Law adopting states to cover these areas were
public policy and not be enforced by the courts.
considered in drafting the Model Law.
158
Nevertheless, such
areas were not included for reasons of complexity, controversy or

lack of apparent contemporary need.
The Tunisian public policy in international arbitration is
As with the commentary
inspired in part by international public policy in pre-1981 French
on the Model Law, the areas selected for discussion have been
article 1502 and similar Belgian law.165 With globalisation French
included to highlight issues requiring consideration in any reform
and Belgian courts considered that public policy did not relate to
159
27 YAR JULY 10, 2013
forbidding arbitration from occurring. In this line of thought the
of arbitrators has increasingly received attention in arbitration
arbitrator remains competent to deal with the matter, but he must
scholarship.177 The values of particular cases have grown ever
consider public policy. 166 International public policy represents
larger and the expectations of parties with regard to arbitrators
the common thinking of various jurisdictions and not parochial
and arbitration institutions is increasingly exacting.178 It
obstacles hindering award recognition and enforcement.167 Thus
can also be measured in the perceived contemporary claims
article 1514 of the current French Code of Civil Procedure now
culture in many countries, even though arbitration rules often
states, . . . manifestly contrary to international public policy. To
cover this area.179 Despite provision in arbitration rules, the
indicate a Tunisian openness to recognising and enforcing arbitral
liability of arbitrators and arbitral institutions requires careful
awards, consideration should be given to amending articles
consideration as a precautionary measure in any review of
79(2) and 81(2) to the French article 1514 wording so the use of
national arbitration law to ensure the jurisdiction remains
manifestly clearly demonstrates this point.
viable for arbitrators and arbitral institutions to operate in. It

is desirable to exclude arbitrator liability, institution liability
Costs and fees
and appointing authority liability unless an act was done in bad

faith or perhaps a wrongdoing that was intentional.180
A mundane, but important, element for parties, counsel

and arbitration in an award are costs and fees.
National
The present Tunisian position in article 11 developed the
arbitration laws rarely cover fees, costs or apportionment of
law by stating duties of an arbitrator: he may not resign unless
costs of proceedings.
Tunisian law arbitration law does
there is a valid reason on penalty of payment of damages. In
not do so. This is normally governed by the arbitration rules
addition, an arbitrator is to comply with duties within 30 days
adopted.
otherwise his mandate terminates by resignation or agreement
168
169
Where legislative provisions exist they often
duplicate arbitration rule provisions.
Sanders proposes a
by the parties.181 The Model Law only refers in article 14 to
costs provision for arbitrators so the court can have control of
acting without undue delay. To align with the Model Law,
this if the arbitrators seek a court ruling.
thought should be applied to whether the rigid 30 day limit
170
171
should be replaced in Tunisian law with ML article 14(1)s less

Such a provision could be inserted in Tunisian law to
rigid undue delay.
enable arbitrators to fix their fees if no provision is made for

this in the arbitral clause or agreement or the arbitration rules
used.
In terms of national laws there has been much variation
A survey of law reveals that New Zealand law permits
in approach in considering liability.182 Many common law
arbitrators to refuse to deliver the award until their fees are
jurisdictions have inserted a provision on arbitrator liability.183
paid. Hong Kong law permits payment of fees into court if a
Particular examples of common law adoptions of the Model
tribunal refuses to deliver the award until its fees have been
Law that include liability are Australia for fraud in respect of
paid.
A tax officer of the court will review the fee to decide
anything done or omitted,184 Bermuda where the law states he
a reasonable sum that should be payable. An additional award
may be liable for the consequences of conscious and deliberate
may be rendered in Australia, Hong Kong, New Zealand and
wrongdoing185 and Malta where his action or omission is
Greece if costs of arbitrators are not included in the award.174
attributable to malice or fraud.186 These indicate a common
Germany and Bermuda repeat article 40(1) of the 1976 Rules
law tendency to address the issue. There is less tendency in
regarding arbitrator cost apportionment, essentially that costs
civil law to address the issue. An exception is Peruvian civil
follow the loser.
The 2010 Rules in article 42 contain similar
law which states arbitrators are liable for damages caused by
provision, albeit nuanced by the circumstances of the case.
delay or failure to comply with their obligations once they
With regard to counsel fees, unless the parties otherwise agree
accept the assignment187 Sanders proposes a good law should
in German arbitration law a tribunal may allocate between
cover both arbitrators and arbitral institutions rather like the
parties the costs necessarily incurred for proper pursuit of the
English Arbitration Act 1996 section 29 covering arbitrators
claim or defence to temper expensive counsel fees.
and section 74 covering the institutions.188
172
173
175
176
This brief survey shows that provision for costs and
A third option exists. Even though the Model Law does
fees for arbitrators and counsel fees by the tribunal should be
not fully address the liability of arbitrators, arbitral institutions
considered for inclusion in Tunisian law. Arbitrators should be
and arbitrator appointing authorities, the 2010 Rules do provide
able to refuse to deliver the award unless they are paid. This
some guidance to regulating this area. In these rules liability
payment could be by payment into court and taxation on the
is to be limited to liability for wrongdoing in bad faith.189 The
fees demanded in line with Hong Kong practice. Tunisian use
adoption of this approach by Tunisia would enforce its high
of Hong Kong practice would be in line with that of a Model
fidelity factor by close adherence to general UNCITRAL
Law adopting state, thus keeping within range of achieving a
attempts to tackle arbitration difficulties as well as be consistent
high fidelity arbitration law, as would additional adoption of
with a benchmark set of international arbitration rules.
the 2010 Rules regarding counsel fee apportionment.

Confidentiality
Liability of arbitrators, arbitral institutions
and arbitrator appointing authorities
Another issue surrounding arbitration is confidentiality.

There are no confidentiality provisions in the Model Law or
Concerning issues surrounding arbitration, the liability
Tunisian law. Nevertheless, confidentiality is a key issue considered
28 YAR JULY 10, 2013
by parties when constructing their dispute resolution clauses.190
open hearing, which may be of significance where a Tunisian

state entity is party to an arbitration and questions of public
Variation exists in the approach to confidentiality in
accountability can be addressed through a public court hearing.
statute, rules and case law. Section 14E of the New Zealand
Thus the scenarios of public accountability raised in the case
Arbitration Act 1996 states that court permission is required
law of Australia, Sweden and England and Wales may be duly
for a party to disclose confidential information relating to an
considered by the court when they arise at court in its supervisory
arbitration. Article 28(3) of 2010 Rules states hearings must
capacity or in enforcement proceedings.197
be held in camera unless the parties agree otherwise. Yet the

ICC Court regularly publishes awards in full text or sanitised.191
Multiparty and multi-contract arbitration
The 2010 Rules in article 34(5) imply a default position for

confidentiality; the award may only be made public by a party
Ranging more broadly, multiparty and multi-contract
to discharge a legal duty or protect a legal right. The Australian
arbitration are worthy of consideration in Tunisian international
High Court rejected confidentiality to side with the public
arbitration. Both raise issues of the possibility to consider all issues
interest.
A notable Swedish case provided a nuanced view that
together either through the provisions of the arbitral clause or
confidentiality was procedural in nature and had to be expressly
agreement itself, or in the absence of such provisions in accordance
agreed if confidentiality was to be honoured beyond that limit.
with the arbitration rules incorporated by reference into the arbitral
Leading English judgments side with confidentiality.
clause or agreement. A final, less likely option is to do so through
192
193
194
the terms of the national law of the seat of the arbitration.

Court proceedings are often public, so legislative provision
for confidentiality is needed unless court procedure contains
in camera hearings anyway.
There was general agreement that the Model Law should
Section 22 of the Singapore
not deal with third parties, consolidation or multi-contract
International Arbitration Act 2002 and section 16(1) of the Hong
arbitration within the UNCITRAL Working Group.198 Yet
Kong Arbitration Ordinance 2010 state that hearings relating to
consolidation by court order has been introduced in several
arbitrations are not be held in open court unless ordered by the
UNCITRAL adopting states.199 In California it is on terms the
court on application of a party or, in the Hong Kong case, the
court considers just and necessary on the application of a party
court decides the hearing ought to be in open court.
and with consent of all the parties.200 In Georgia (USA) s 9.9.6 of
195
the Georgia Arbitration Code supplements s 9.9.3 on arbitration

Arguably confidentiality is best left to a mix of party
agreement validity by stating that unless the parties have agreed
autonomy reflected in party agreement, arbitration rules
otherwise a party may apply to court to consolidate proceedings.
such as the detailed provisions of World Intellectual Property
In the absence of any agreement the court appoints arbitrators of
Organisation, soft law like that of the International Bar Association
the consolidated proceedings. If rules for the old proceedings are
196
Rules on Taking Evidence as well as national arbitration law.
inconsistent for the new consolidated proceeding, the court will
To facilitate the Tunisian position any reform should consider
resolve the discrepancies.201 More consensually, North Carolina
paralleling a position akin to that in the Hong Kong law. Hong
allows consolidation with party consent by order of the court
Kong law has the added benefit of the Court deciding upon an
on terms the court considers just and necessary. Like Georgia,
29 YAR JULY 10, 2013
the court as a consequent action may appoint arbitrators in
Tunisian laws high fidelity on this issue, rather than relying on
the absence of party agreement and decide other matters that
the Tunisian Code of Obligations and Contracts.
the parties cannot agree so as to create a viable consolidated

arbitration.202 In Hong Kong in an arbitration agreement it is
It argues that the efficiency of international arbitration in
possible to opt into a discretionary court power to consolidate
Tunisia will increase and be more bespoke to the circumstances
proceedings and make consequent orders.
Court supervision of
of each case if tribunals may decide whether to continue arbitral
consolidation of cases has the advantage of greater enforceability.
proceedings when there are pending court decisions regarding
In Tunisia case law has developed on consolidation and the
the validity of an arbitral clause or agreement or other matters.
appointment of arbitrators. The court permits incorporation of
Arbitration would also be made efficient by giving a truncated
third parties into cases, even though it is argued it goes beyond
tribunal the ability to apply to court for consent to continue the
statutory powers to do so.
arbitration to render an award. Furthermore, parties should be
203
204
given the opportunity to opt out of the entitlement to apply to

In Australian and New Zealand
and Floridian law,
court regarding a challenge to an arbitrator, thereby giving the
consolidation is by the tribunal if all parties agree and the
tribunal greater influence over the management of the case, but
tribunal determines it is in interests of justice and an expeditious
within the consent of the parties. Courts may also contribute
solution.
to efficiency and party needs if given the power to fix a time
205
206
If an arbitral tribunal cannot agree the issue, the
party will will have to go to court.
limit within which an arbitration is to commence, if this has
207
not already been agreed by the parties.

In progressive, mainly common law jurisdictions it seems
that the most enforceable method of considering third parties,
In terms of interim relief, Tunisian arbitration law has
case consolidation and multi-contract issues is through the
not embraced the revised ML articles 17 and 17A-17J. In an
court on terms the court considers just and necessary on
era of higher party expectation of interim measures in ICA,
the application of a party followed by orders for appointment
consideration needs to be given to providing ex parte preliminary
208
of arbitrators and for procedural matters where required.
orders, interim measures, their appropriate circumstances
Providing these statutory powers to the Tunisian Court of
and evidential burdens and whether these powers should be
Appeal should be carefully considered in any reform of Tunisian
available only to the court or to the arbitral tribunal too. It is
arbitration law. It would acknowledge developments in Tunisian
suggested that the powers should be given to the court and the
case law, but clearly set out recognisable and understandable
tribunal. Through the court option, orders or measures relating
law for foreign investors, counsel and arbitrators in line with
to third parties that the tribunal may not have the power to
the role of national arbitration law articulated by Hermann.
decide can be considered. This would also fit the free choice
209
approach of the Model Law regarding the use of the court and
7. CONCLUSIONS: ISSUES TO CONSIDER IN A
tribunal for supportive measures to the arbitration.
REVISED TUNISIAN INTERNATIONAL ARBITRATION

LAW
Although a tribunal appointed expert may be the most

efficient method of obtaining expert evidence for the tribunal,
It has been noted that by adopting the Model Law Tunisia
it must be recognised that often parties have already instructed
ensured its international arbitration law contained generally
an expert by the time arbitral proceedings commence.
recognised arbitration principles. It also ensured it was of good
Therefore sometimes it is more efficient or appropriate for a
quality for foreign users in a more technical sense through
tribunal to accept party expert evidence. Although tribunal
reliance on the Model Law travaux prparatoires and the case
powers may exist relating to party experts in some cases through
law of the Model Law. Yet in the aftermath of the revision of
incorporation of arbitration rules,210 the Tunisian international
the Model Law, the 1976 Rules and more recently the political
arbitration law should contain non-mandatory final resort
revolution in Tunisia fuelled by economic aspiration of the
provision for party experts to ensure efficient and fair arbitral
population, it is time to review a dispute resolution mechanism
proceedings are conducted.
that is likely to have an important part to play in the enhanced

economic development of Tunisia.
The aim of efficiency would also be obtained by adopting

the Model Law approach in article 25(b) allowing for the
With this in mind, this dissertation has reviewed the
tribunal to decide whether to continue the claimants case if
elements of Tunisian arbitration law that warrant consideration
a respondent fails to communicate its statement of defence.
for change in line with the revised Model Law and contemporary
Time is then not lost in additional negotiation, relaunching
ICA practice worldwide. It has questioned whether Tunisia
arbitration or taking the case to court.
after 19 years of Model Law adoption in its international

arbitration law requires a separate domestic arbitration law
If an award is set aside, Tunisia has a novel and practical
to accommodate domestic circumstances. It has queried the
solution in requiring the court to decide the matter on its merits
necessity of a definition in article 48(3) of commercial if the
with the agreement of the parties under article 78(5). This
arbitration law is intended to cover generally civil and mixed
mechanism could be given greater effect by reform by enabling
arbitrations. It suggests revision of Tunisian article 6 to directly
a party to appeal to court for such a resolution when the parties
incorporate the broad definition of an arbitration agreement in
disagree about resolving the matter in court. The court could
writing contained in option 1 of ML article 7 to enhance the
then consider if, in the circumstances, it would be appropriate
30 YAR JULY 10, 2013
to that effect.
for the court to proceed to decide the dispute.

The quality of arbitral decisions and awards may be
With regard to ease of recognition and enforcement,
preserved by addressing in any arbitration law amendment the
Tunisian articles 79-82 should be rewritten to more closely
liability of arbitrators and arbitral institutions. This should
parallel the division of issues in ML articles 35 and 36 for ease of
focus upon excluding liability except for wrongdoing in bad
recognition and understanding by foreign users. Consideration
faith. This conveniently aligns Tunisian law with the 2010 Rules
should also be given to removing the requirement for reciprocity
thus providing a framework recognisable and understandable
of enforcement in the Tunisian law pursuant to Tunisias
to foreign parties, counsel, arbitrators and arbitral institutions.
ratification of the NYC.
Such a statement would indicate
Tunisias unequivocal embrace of international investment.

Little benefit appears to derive from the Tunisian
requirement that the tribunal formally closes the arbitral
In terms of setting aside after provision of the award,
proceedings. Indeed, it may prevent meritorious late challenges
to ensure full weight is given to any public policy matter, and
to arbitrators when information arises at the award writing
thus to ensuring the legitimacy of recognising arbitral awards
phase, so impacting upon the quality of arbitration.
in Tunisian society, the time limit for making an application for
This
set aside should be amended from 3 months from the date of
aspect of Tunisian law should be removed.
the award to include three months from the date of any public
Arbitrators make decisions of greater value to parties
policy matter reasonably being known to a party. An effect
by being able to consider consolidated arbitral proceedings
of this may be to enhance the ability of the courts to enforce
and make consequent orders to achieve them. Therefore the
public policy matters such as curtailing corruption.
current court power reflected in Tunisian case law should be

codified on just and necessary grounds and available on a
A further point on public policy is to reinforce in Tunisias
partys application with the ability to make consequent orders
international arbitration law that it refers to international public
as in Georgia, USA.
policy and to avoid a case by case extension of its meaning

for domestic benefit. This may be done by continuing the
Part of a valuable outcome to parties may be considering
Tunisian affinity to French law on international public policy
issues of set off. As a procedural law, Tunisian international
by incorporating into Tunisian international arbitration law the
arbitration law is able to provide a procedural stage and means
wording in French article 1514 . . . manifestly contrary to
by which set off issues can be raised.
international public policy.
It is recommended
consideration is given to incorporating the wording of articles

21(3) of the 2010 Rules to facilitate this at the defence stage
The confidentiality of proceedings and awards is an
of memorials with tribunal discretion to permit such issues at a
important issue in international arbitration. It is often covered
later stage if justified under the circumstances.
by arbitration rules, however a non-mandatory position under

Tunisian international arbitration law would assist parties. It
The completion of final elements of arbitration cases
is suggested reforms follow Hong Kong law in which court
may be made easier if, in the absence of provision between the
hearings relating to arbitrations are confidential unless ordered
parties and arbitrators or within arbitration institutional rules
by the court on the application of a party, or the court of its
there is provision for payment of costs and fees in Tunisian
own volition decides a matter should be heard in public. This
law. Disputed arbitrator fees could be resolved by arbitrator
gives the court an option of delivering justice in public when it
application to court for taxation, meanwhile his award is
considers it necessary, but otherwise respecting confidentiality.
withheld until payment is made of the reasonable fees decided

by the court. An explicit power for the tribunal to consider the
A reform of the Tunisian arbitration law would assist in
necessity and allocation of counsel fees within a partial, interim
fostering a favourable investment climate. The 1993 Tunisian
or final award should be made in the arbitration law paralleling
law is Model Law based with a French law foundation.
tribunal powers in the 2010 Rules.
is a good start: it is a law with many elements recognisable
It
and understandable to foreign participants in ICA in Tunisia

The quality of arbitrations may also be enhanced by the
through recognition of elements of highly regarded French
arbitrator appointments function being transferred from the
arbitration law and the Model Law, but the law is 19 years
court to an arbitral institution as an appointing authority. The
old. Much has developed in the practice of ICA in that time.
quality of the conduct of arbitration may also be enhanced
After 19 years of the law and such a major political event as a
by amending article 63 by removing full opportunity to
revolution, it is time to review the Tunisian arbitration law.
appropriate opportunity for a party to present its case so that

time in arbitral hearings is focused.
Possible reforms have been discussed then summarised in

this dissertation. If considered in detail and implemented in a
Tribunals may be able to better serve parties and the
reformed arbitration law, these reforms would ensure Tunisias
issues upon which they are called to decide by being able to

consider rules of law as well as law when deciding applicable law
in the absence of party determination of the issue. Therefore
Henry Clarke, Associate, Construction and Projects
an arbitral law reform should consider amending article 73(2)
Group, Clyde and Co, Dubai and Riyadh
31 YAR JULY 10, 2013
1. This article derives from study of international commercial arbitration at the School of International Arbitration, Queen Mary University of London whilst on the Centre of
Commercial Studies full time LLM programme 2011-2012.
2. See such law firms on Legal 500 http://www.legal500.com accessed on 20 July 2012. The journals include Arbitration International (1985-), ASA Bulletin (1983-), Journal
of International Arbitration (1984-) and Revue darbitrage (1986-) amongst many others. The courses include the Masters in International Dispute Settlement associated
with the University of Geneva, the Masters specialisation at the University of Stockholm as well as the expansion of the School of Arbitration at Queen Marys University of
London as examples within Europe.
3. African Development Bank Economic Brief, 11 March 2011_The Revolution in Tunisia: Economic Challenges and Prospects_1. <http://www.afdb.org/fileadmin/uploads/afdb/
Documents/Publications/North%20Africa%20Quaterly%20Analytical%20Anglais%20ok_North%20Africa%20Quaterly%20Analytical.pdf> accessed 1 July 2012. See also B
Whitaker_How a man setting fire to himself sparked an uprising in Tunisia <http://www.guardian.co.uk/commentisfree/2010/dec/28/tunisia-ben-ali> last visited on 10 July 2012).
4. For Tunisian international arbitration law in English see S Kallel, The Tunisian Law on International Arbitration, Arbitration Materials 369-391.
5. S Lieberman and others, UNCITRAL (United Nations Commission on International Trade Law): its workings in international arbitration and a new model conciliation law,
(2004-2005) 6 Cardozo Journal of Conflict Resolution 73, 74.
6. E Horvath, A Handy Tool for the Settlement of International Commercial Disputes (2008-2009) Pennsylvania State Inernational Law Review, 783, 785.
7. Lieberman (n4) 78; G Herrmann, UNCITRALs Work Towards a Model Law on International Commercial Arbitration, (1983-1984) 4 Pace Law Review 537; Horvath (n5) 785
8. Lieberman (n4) 79
9. Herrmann, UNCITRALs Work Towards a Model Law on International Commercial Arbitration (n6) 538.
10. Ibid 542-543; C A Esplugues and M E McNerney, International Commercial Arbitration: The UNCITRAL Model Law (1986) 9 B. C. Intl & Comp. L. Rev. 47.
11. Esplugues and McNerney (n9) 48.
13. UNCITRAL, The UNCITRAL Guide: Basic facts about the United Nations Commission on International Trade Law, United Nations Publications: Vienna, 2007 14-15.
14. P Sanders, Quo Vadis Arbitration? (Kluwer Arbitration: The Hague 1999) 83.
15. Lieberman (n4) 84.
16. M F Hoellering, The UNCITRAL Model Law on International Commercial Arbitration (1986) The International Lawyer 328, 329.
17. Hoellering (n15), 328-329; Horvath (n5) 785.
19. H Malouche, A Brief Survey of the Tunisian Arbitration Code, ICC Bulletin (1993) 63, 64; H D Gabriel, The advantages of soft law in international commercial law: the role
of UNIDROIT, UNCITRAL, and The Hague Conference, (2008-2009) Brooklyn Journal of International Law 663, 659.
20. UNCITRAL, The UNCITRAL Guide: Basic Facts (n12) 16.
21. Gabriel (n18) 665.
22. Gabriel (n18) 658-668
23. G Herrmann, The UNCITRAL Arbitration Law: a Good Model of a Model Law Uniform Law Studies, (1998) 483, 489.
24. Herrmann , The UNCITRAL Arbitration Law (n22) 486-487.
25. Ibid 487.
26. Ibid 488; Hoellering (n15) 339.
27. Herrmann , The UNCITRAL Arbitration Law (n22) 488.
28. Ibid 488; Lieberman (n4) 82; Hoellering (n15), 328; Sanders, Quo Vadis Arbitration? (n13) 147; A Broches, A Model Law on International Commercial Arbitration?
A progress report on the work undertaken within the UN Commission on International Trade Law, (1984-1985) George Washington Journal of International Law and
Economics, 79, 80
29. Lord Dervaird , Scotland and the UNCITRAL Model Law Arbitration International (1990) 6:1 ) 63 at 68 citing Scottish Advisory Committee: Report to the Lord Advocate
on the UNCITRAL Model Law on International Commercial Arbitration, Stationary Office 1989.
30. See <http://www.uncitral.org/uncitral/en/technical_assistance_coordination.html> accessed on 10 July 2012.
31. Sanders, Quo Vadis Arbitration? (n13) 81.
32. Ibid 81.
34. Ibid 489, 545.
36. Dervaird (n28) 67.
37. Herrmann , The UNCITRAL Arbitration Law (n22) 492, 499.
38. Kerr, Arbitration and the Courts: The UNCITRAL Model Law (1985) 34 International and Comparative Law Quarterly 1, 6.
39. P Sanders, Unity and Diversity in the Adoption of the Model Law Arbitration International (1995) 1, 36.
40. P Sanders UNCITRALs Model Law on International and Commercial Arbitration: Present Situation and Future (2005) Arbitration International 21:4 443; Herrmann ,
The UNCITRAL Arbitration Law (n22) 490; Horvath (n5) 789.
41. UNCITRAL, 2012 Digest of Case Law on the Model Law on International Commercial Arbitration (1985 with amendments as adopted in 2006) United Nations
Publications: Vienna 2012.
43. Article 1(1) Model Law
45. Herrmann , The UNCITRAL Arbitration Law (n22) 486, 490.
46. Arabic, Mandarin Chinese, English, French, Russian, Spanish
47. H Malouche, A Brief Survey of the Tunisian Arbitration Code (1993) ICC Bulletin 63, 63; Herrmann , The UNCITRAL Arbitration Law (n22) 486, 489; Hoellering (n15) 338.
48. Horvath (n5) 786; Herrmann , The UNCITRAL Arbitration Law (n22) 492; Sanders, Unity and Diversity in the Adoption of the Model Law (n38) 36.
50. Horvath (n5) 787.
51. H M Al-Baharna, International Commercial Arbitration in a changing world (1994) 9 Arab L.Q. 144
53. Ibid 486; Horvath (n5) 785, 790; H M Holtzmann, The Conduct of Arbitral Proceedings in UNCITRALs Project for a Model Law on International Commercial
Arbitration, ICCA-Congress Series No 2 (1984) 125, 159.
55. A H El Ahdab and J El Ahdab , Arbitration in Tunisia in A H El Ahdab and J El Ahdab (eds) , Arbitration with the Arab Countries, (Kluwer Law International 2011) 731.
56. Ahdab and Ahdab (n54) 731
57. F Kutty, The Sharia Factor in International Commercial Arbitration, International Journal of Arab Arbitration (2009) 63, 107.
58. Ibid 108.
59. K Qureshi, Cultural sensitivity and international arbitration, International Journal of Arab Arbitration (2009) 1:2, 42.
60. Ibid 45.
61. Ahdab and Ahdab (n54) 733; Law No 93-42 of 26 April 1993; Sanders, Quo Vadis Arbitration? (n13) 82; Malouche (n46) 63.
62. J-L Delvolv , G H Pointon, et al, French Arbitration Law and Practice: A Dynamic Civil Law Approach to International Arbitration (Second Edition, Kluwer Law
International: the Hague 2009) 6-7.
63. Malouche (n46) 64.
64. Ibid 64; Kallel (n3) 369. The reform was also influenced by Belgian and Swiss arbitration law see S Carmeli and S Feriani, Tunisia in G De Palo and M B Trevor (eds),
Arbitration and Mediation in the southern Mediterranean Countries, 2009 Kluwer Law: The Hague 163.
65. A Ouerfelli, Recent Developments of Arbitration Law and Practice in Tunisia ASA Bulletin (2011) 29:2 296.
66. Malouche (n46) 63; Kallel (n3) 369; Sanders, Unity and Diversity in the Adoption of the Model Law (n38) 6; Sanders, Quo Vadis Arbitration? (n13) 98.
68. Ibid 96.
69. Ibid 99.
70. Ibid 92.
71. Esplugues and McNerney (n9) 49; Hoellering (n15) 329; Herrmann, UNCITRALs Work Towards a Model Law on International Commercial Arbitration (n6) 548
72. Kallel (n3) 370 and E Al Tamimi, The Practitioners Guide to Arbitration in the Middle East and North Africa, Juris: New York 2009 463.
73. Malouche (n46) 65
74. Sanders, The Work of UNCITRAL on Arbitration and Conciliation (2004) Kluwer Arbitration: The Hague 67.
32 YAR JULY 10, 2013
75. Ibid 67.

76. Ibid 63; Broches (n27) 83; Esplugues and McNerney (n9) 50; Lieberman (n4) 85; Malouche (n46) 64.
77. Sanders, The Work of UNCITRAL on Arbitration and Conciliation (n73) 67.
78. Ibid 71.
79. Ibid 67.
80. Ahdab and Ahdab (n54) 737.
81. See text relating to footnotes 24 and 37.
83. Tunisian articles 61 and 62.
84. Kallel (n3) 372; Sanders, Quo Vadis Arbitration? (n13) 109.
85. J K Shafer, New solutions for interim measures of protection in international commercial arbitration: English, German and Hong Kong law compared, Electronic Journal of
Comparative Law 2:2 27-29.
86. In France a court only reviews an arbitration agreement if the arbitration has not yet commenced, and if it does review it, it will refer it to arbitration unless it is manifestly null
(article 1458 Code of Civil Procedure). In England under s32 of the English Arbitration Act a limited right of review exists by a court. A fuller review exists under the s4 of the
US Federal Arbitration Act.
87. As argued for the Model Law. See Sanders, UNCITRALs Model Law on International and Commercial Arbitration: Present Situation and Future (n39) 448 and 467.
88. Sanders, Quo Vadis Arbitration? (n13) 105; Herrmann , The UNCITRAL Arbitration Law (n22) 494.
89. Tamimi (n71) 465.
90. Section 8(3)(a)(ii) International Arbitration Act 2008 of Mauritius.
91. For a list of these see Tamimi (n71) 459-460; Carmeli and Feriani (n63 )178-180.
92. Kallel (n3) 373.
93. Ibid 371.
95. Broches (n27) 87.
96. Ahdab and Ahdab (n54) 748; Sanders , UNCITRALs Model Law on International and Commercial Arbitration: Present Situation and Future (n39) 477.
97. Sanders, The work of UNCITRAL on Arbitration and Conciliation (n73) 176.
98. Ibid 176. See article 17(2) Rules of the Arbitration Institute of the Stockholm Chamber of Commerce and article 12 of the London Court of Arbitration Rules.
99. Article 61(3); Malouche (n46) 67; Sanders, Unity and Diversity in the Adoption of the Model Law (n38) 15.
100. S M Chao and S Menon, Reforming the Model Law Provisions on Interim Measures of Protection (2006) Asian Intl Arb J 5.
102. Broches (n27) 86; Chao and S Menon (n99) 2.
103. Sanders, Quo Vadis Arbitration? (n13) 111; Sanders, The work of UNCITRAL on Arbitration and Conciliation (n73) 100; Malouche (n46) 67.
104. Tamimi (n71) 471.
106. Malouche (n46) 66.
107. Ibid 66.
108. See the arbitration laws of China (article 68), Italy (article 818) and Argentina (article 753) for example.
109. Chao and Menon (n99) 22.
110. Ibid 2.
111. Ibid 5.
112. Ibid 3.
113. Esplugues and McNerney (n9) 57; Sanders, The work of UNCITRAL on Arbitration and Conciliation (n73) 99.
117. Article 17(2) Model Law.
118. Model Law article 17A(1).
119. Article 17(2)(a) Model Law.
120. Chao and Menon (n99) 7-9; case law typical of this view: Blumenthal v Merrill Lych, Pierce, Fenner, Smith Inc (1990) 910 F2d 1049; Publicis Communication and Publicis
SA v True North Communications Inc (2000) 206 F 3d 725 XXV YBCA 1152
121. Lieberman (n4) 93; Sanders, The work of UNCITRAL on Arbitration and Conciliation (n73) 99.
122. See Rule 26.2 and Schedule 1 to SIAC Arbitration Rules 2010; Article 29 and Appendix V ICC Rules of Arbitration 2012.
124. Ibid 10.
125. Ibid 15.
126. Chao and Menon (n99) 25; Sanders, The work of UNCITRAL on Arbitration and Conciliation (n73) 65.
127. Section 12, Singapore International Arbitration Act 2012.
129. Article 64(2)
130. Al-Baharna (n50) 153.
132. Sanders , UNCITRALs Model Law on International and Commercial Arbitration: Present Situation and Future (n39) 453-454, 468.
133. S 33(1)(a) English Arbitration Act 1996.
135. Akin to a suggestion for the Model Law in Sanders , UNCITRALs Model Law on International and Commercial Arbitration: Present Situation and Future (n39) 459, 468469; Model Law article 26 and Tunisian article 71.
136. Broches (n27) 90.
137. Sanders, The Work of UNCITRAL on Arbitration and Conciliation (n73) 117.
139. Malouche (n46) 67.
140. Lieberman (n4) 87; Herrmann , The UNCITRAL Arbitration Law (n22) 494.
141. See J D M Lew, L A Mistelis and S M Krll, Comparative International Commercial Arbitration, Kluwer Law International: The Hague 2003: 453-461.
142. Article76(2).
143. Tunisia signed the NYC in 1967.
144. Kallel (n3) 375.
146. Ibid 480.
147. Malouche (n 46) 68.
148. Herrmann, UNCITRALs Work Towards a Model Law on International Commercial Arbitration (n6) 563; Hoellering (n15) 338.
150. Broches (n27) 93; Sanders, The work of UNCITRAL on Arbitration and Conciliation (n73) 179.
151. Malouche (n46) 68.
152. As argued by for the Model Law in Sanders, The work of UNCITRAL on Arbitration and Conciliation (n73) 128.
153. Sanders, Unity and Diversity in the Adoption of the Model Law (n38) 22.
155. Kallel (n3) 374; Malouche (n46) 68; Sanders, Unity and Diversity in the Adoption of the Model Law (n38) 22.
159. H M Holtzmann and J E Nauhaus, A Guide to the UNCITRAL Model Law on International Commercial Arbitration: Legislative History and Commentary (TMC Asser
and Kluwer: The Hague and Boston 1989) 1118.
33 YAR JULY 10, 2013
160. Articles 21(3) and 22.

161. Tamimi, (n71) 473.
162. C Fountoulakis, Set Off Defences in International Commercial Arbitration: A Comparative Analysis, Hart: Portland 2011 216-228.
163. Article 21(3).
164. S L Brekoulakis, On arbitrability: persisting misconceptions and new areas of concern, in L Mistelis and S Brekoulakis (eds), Arbitrability: International and Comparative
Perspectives (2009) Kluwer Law International: The Hague 20.
165. If the recognition or execution is contrary to international public policy, article 1502; Sanders, Quo Vadis Arbitration? (n13) 118; Malouche (n46) 68.
166. A Ouerfelli, Lights on the Tunisian Case Law and the Application of Public Policy in Arbitration Intl J of Arab Arb 51, 52
167. Ibid 54.
168. Sanders, The work of UNCITRAL on Arbitration and Conciliation (n73) 148, 151 and 154.
169. Ibid 145.
172. Holtzamann and Nauhaus (n158) 1119.
173. An idea set out relating to the Model Law in Sanders, UNCITRALs Model Law on International Commercial Arbitration: Present Situation and Future (n39) 473.
174. Ibid 473.
175. Ibid 473.
176. Section 1057.
177. Sanders, Unity and Diversity in the Adoption of the Model Law (n38) 34
178. See the parallel arbitrations: Yukos Universal Ltd (UK Isle of Man) v Russian Federation; Hadley Enterprises (Cyprus) v Russian Federation; Veteran Petroleum Trust
(Cyprus) v Russian Federation accessed on 19 July 2012 at http://www.encharter.org/index.
179. Sanders, Quo Vadis Arbitration? (n13) 149-150.
181. Tunisian Article 59.
182. Sanders, The work of UNCITRAL on Arbitration and Conciliation (n 73) 161.
184. Section 28
185. Section 34
186. Section 20(3)
187. Article 16(2); Sanders, Unity and Diversity in the Adoption of the Model Law (n38) 35.
189. Article 16.
190. 2010 International Arbitration Survey: Choices in International Arbitration, Queen Mary and White and Case 3, 29-31.
191. Horvath (n5) 789.
192. Esso Australia Resources and others v The Honorable Sidney James Plowman and others [1995] 193 CLR 10.
193. Bulgarian Foreign Trade Bank v AI Trade Finance [2001] XXVI Ybk Comm Arb 291
194. Ali Shipping Corporation v Shipyard Trogir [1998] 1 Lloyds Rep 643; Department of Economics Policy and and Development of the City of Moscow v Bankers Trust Co
[2005] 2 QB 207.
195. Horvath (n5) 789.
196. Sanders , UNCITRALs Model Law on International and Commercial Arbitration: Present Situation and Future (n39) 476.
197. See footnotes to 191 to 195.
198. Sanders , UNCITRALs Model Law on International and Commercial Arbitration: Present Situation and Future (n39) 471.
199. Ibid 471.
200. ss 1297.272 Californian Code of Civil Procedure.
202. s 569.11 North Carolina Revised Uniform Arbitration Act.
203. Section 99 referring to sections 1 and 2 of Schedule 2 of the Hong Kong Arbitration Ordinance 2010.
204. For commentary see Ouerfelli, Recent Developments of Arbitration Law and Practice in Tunisia 304-305.
205. Sanders, UNCITRALs Model Law on International and Commercial Arbitration: Present Situation and Future (n39) 471.
206. s684.12; Sanders, Unity and Diversity in the Adoption of the Model Law (n38) 30.
207. Sanders, The work of UNCITRAL on Arbitration and Conciliation (n73) 145; see s 4 New Zealand Arbitration Act 1996.
209. See text to footnote 24.
210. Article 27 of the 2010 Rules or articles 22, 23 and 25 of the International Chamber of Commerce International Court of Arbitration Rules 2012
34 YAR JULY 10, 2013
MOTIVATION OF ARBITRAL
AWARDS: A FEW NOTES
By Duarte Gorjo Henriques
Decide promptly, but never give any reasons.
found within some jurisdictions, some statutes on international
Your decisions may be right, but your reasons
arbitration and also among some legal commentators, according
are sure to be wrong.
to which grounding and motivation was not required in order
William Murray, 1st Earl of Mansfield
to ensure a valid and enforceable award. Lord Mansfields

quote above is the reflection of this legal tradition and we
I. Giving reasons for any judicial, administrative
would easily concede to this point of view if we would thought
and even arbitral decision comes to our mind almost as an
of the single and conspicuous advantage of having decisions
intuitive requirement for such decisions and seems to be a
without motivation: if no motivation was required, no reason
natural reflection of elementary principles of any rule of law.
or doubt would arise to substantiate an appeal and the decision
Specifically in the arbitration context, motivating an award
would be by itself peacefully sufficient to settle any dispute.
enables the parties to understand the reasoning of the award,
And this would be even more true if we thought of one of the
persuades the parties to comply with it and helps to ensure the
general and primarily rules of arbitration, which is precisely the
awards enforceability.
absence of appeal (at least by default).
For the Portuguese legal culture and judicial system it
But disregard motivation of the award has the enormous
is rather unquestionable and patently obvious that any given
danger of allowing the confusion between the service of
decision, being a judicial or an arbitral one, shall state its reasons
justice (or the settlement of disputes if we should so limit the
as any person or persons affected by such decision is entitled to
role of arbitration) and the individual discretion or even the
know exactly what the respective grounds are. Like the legal Latin
arbitrariness, specially when the arbitral tribunal may decide the
proverb stated, a decision has the power to turn white into black
dispute ex aequo et bono. This is the reason that the motivation
and square into circle (facit de albo nigrum aequat quadrata
of any decision is considered as an aspect of the right to a
rotundis) and as so, any person subject to that kind of change
fair trial according to Art. 6 of the European Convention on
should know exactly why the colour or shape has changed.
Human Rights and is also reflected in various Constitutional

Laws, namely the Constitution of the Portuguese Republic
Somehow conversely there was a tradition that could be
(Art. 205, par. 1). This principle extends not only to judicial
35 YAR JULY 10, 2013
decisions but also to administrative decisions and there is no
in Portugal. This is the key issue that I wish to address in this
reason for being inapplicable to arbitral awards.
article, which will be therefore related to determine the extension

of the reasoning required, if any, under the Portuguese law.
Accordingly,
that
tradition
is
being
progressively
abandoned giving room to a trend on recent statutes of
III. We shall firstly look at the Portuguese legal regime
international arbitration and recent arbitration laws where
concerning the recognition and enforcement of foreign arbitral
the requirement of motivation of the award can be found.
awards. This legal regime is primarily set out in the LAV.
For example, one can find such requirement under the

1961 European Convention on International Commercial
The Art. 55 of the LAV provides that without
Arbitration, under the Belgian Law, under the German Law and
prejudice to the mandatory provisions of the 1958 New York
even under the English 1996 Arbitration Act. Giving a glance
Convention on the Recognition and Enforcement of Foreign
at the rules of arbitration of some institutionalized centres of
Arbitral Awards, as well as to other treaties or conventions that
arbitration, reasoning is required under the ICC 2012 Rules
bind the Portuguese State, the awards made in arbitrations
(Art. 31, par.2), under the Swiss Chambers of Commerce
seated abroad shall only be effective in Portugal, regardless
Association rules (Art. 32, par. 3), under the LCIA rules (Art.
of the nationality of the parties, if they have been recognized
26.1), under the AAA- ICDR Arbitration rules (Art. 27.2) and
by the competent Portuguese State court, under the present
under the SCC rules (Art. 36, par.1) among others.
chapter of this Law.2
II. The Portuguese Law is no exception to this
There is also a legal provision foreseeing the grounds
understanding. As a matter of fact, one can also find the
for the refusal of the recognition and enforcement of foreign
reasoning requirement under the Portuguese Civil Procedure
arbitral awards (Art. 56 of the LAV) which is identical to the
Code (Art. 668, par. 1, al. b) and Art. 158) and more particularly
Art. 36 of the UNCITRAL Model Law and similar to the Art.
under the new Portuguese Arbitration Act (Law No. 63/2011,
V of the 1958 New York Convention on the Recognition and
of December 14, 2011, simply LAV). However, also reflecting
Enforcement of Foreign Arbitral Awards (NYC 1958).
a general trend, the LAV admits that the parties may agree
to dispense with reasons. According to Art. 42, par. 3 of the
However, none of these provisions addresses the question
LAV, the award shall state the reasons upon which it is
of lack or insufficiency of reasoning as an explicit and specific
based, unless the parties have agreed that no reasons are to be
ground to refuse recognition and enforcement of an arbitral
given or the award is rendered on the basis of an agreement of
award.
the parties under article 41.

Furthermore, there is a peaceful understanding that
Reasoning is therefore required by default and the absence
the legal provisions concerning the refusal of recognition and
of motivation, when the parties have not agreed to dispense
enforcement of arbitral awards set out an exhaustive list of the
with reasons, is a specific and clear ground for annulment of
grounds for that refusal.3 The legal provisions of the Portuguee
the arbitral award: an arbitral award may be set aside by the
LAV (Art. 56) are no exception to this understanding.4
competent State court only if [] vi) the award was made in

violation of the requirements set out in article 42, paragraphs 1
and 3 cfr. Art. 46, par. 3, a) of the LAV.
Notwithstanding, looking at the range of possible

grounds for refusal of the recognition and enforcement of the
award provided for at the Art. 56 of the LAV, there are two
The first cited legal provision of LAV matches exactly

the Art. 31 (2) of the UNCITRAL Model Law on International
possible paths to explore, although none of them seems to be

solid ground at first sight.
Commercial Arbitration (2006 amendments) but under the

Model Law, absence of motivation is not an express ground
The first one would be to consider that the absence of
for set aside an award or even to refuse the recognition of an
motivation entails the violation of the principles of due process.5
arbitral award (cfr. Art. 34 and Art. 36 of the Model Law).
The second would be to consider this failure as a breach of

public policy principles.
Nevertheless it is crystal clear that any arbitral award

drawn up under and submitted to the LAV shall state the
Considering the lack of reasoning as a breach of the
reasons upon which is based. This conclusion applies both
principles of due process is certainly a long shot with too many
to domestic arbitrations and to international arbitration
shortcomings. In fact, the principles of due process are mostly
procedures having its place in Portugal : the provisions of
related to the right of both parties being treated equally and
this Law on domestic arbitration shall apply to international
have an equal chance to fairly and properly be heard during
arbitration, with the necessary adjustments (par. 2 of Art. 49
the course of the proceedings (presenting its factual and legal
of the LAV). Thus, no doubts arise concerning the necessity
arguments in an adversarial manner) which clearly does not
of motivating any arbitral award subject to the Portuguese Law
have any connection with the award itself and the motivation
(both domestic and international arbitrations held in Portugal).
behind it. As this issue has been clearly place [d]ue process
should not be confused with the requirement that arbitrators
The question remains as to the foreign arbitral awards that

are subject of a request for recognition and enforcement procedures
give reasons for their award. () the failure to give reasons is

not in itself contrary to the principle of due process.6
36 YAR JULY 10, 2013
This due process theory does not seem to be a reasonable
interpreted with restrictions.
argument to sustain.
Would lead to a result, establishes a direct connection
IV. On the other hand, approaching the possible breach of
to the final result or determination of the award not the
public policy principles would justify by itself a deeper analysis,
logic process of construing and producing such award. What
which is not within the scope of this article. Therefore, I will
should be regarded as producing a result (clearly incompatible
limit myself to summarize some short ideas.
with the international public policy of the Portuguese State) are the
contents of the award, more precisely the dispositive part of the
First of all, one should pay particular and careful attention

to the specific wording of the LAV.
award. What is able to produce a certain result is the effective

determination of the issues in dispute, not the reasons (or the
absence of reasons) of such determination.
The Art. 56, par. 1 of the LAV provides that Recognition

and enforcement of an arbitral award made in an arbitration
Clearly incompatible, in the sense that the incompatibility
taking place in a foreign country may only be refused () b) If
shall be manifest, notorious or even egregious. Any
the court finds that: () ii) The recognition or enforcement of
incompatibility does not suffice. It must be a notorious one.
the award would leads to a result clearly incompatible with the

international public policy of the Portuguese State.
Finally, the result of the award must be incompatible with

the international public policy of the Portuguese State. The
In this text there are some key words that I would like to
international public policy of a State is by nature narrower than
stress: may only be refused; would lead to a result; clearly
the domestic public policy as the latter comprises the former.
incompatible; and international public policy.
At least they are different. As Albert van den Berg wrote,
May only be refused, I should stress once again, entails
The distinction between domestic and international
the conclusion that we are facing an exhaustive list of possible
public policy means that what is considered to
grounds for the refusal of the recognition and enforcement.
pertain to public policy in domestic relations does not
But besides that, this conclusion also leads to a restrictive
necessarily pertain to public policy in international
interpretation of any of the provided grounds for the refusal.
relations. According to this distinction, the number
All possible grounds as provided by this legal provision must
of matters considered as falling under public policy in
not be regarded with any broad meaning and wideness must
international cases is smaller than that in domestic ones.
not be allowed. Even the breach of public policy, which has
The distinction is justified by the differing purposes of
a broad and vague scope by nature, should be construed and
domestic and international relations.7
37 YAR JULY 10, 2013
Therefore, any approach to a possible breach of the
Again, I dont think that the principles and rules of
international public policy of the Portuguese State necessarily
international public policy may set out a requirement of
entails a more restrictive assessment, to which is predominant
motivating any arbitral award.
the consideration of the purposes and principles of the

international relations and international commerce.
V. One should assert that under the LAV legal provisions

and specifically under the provisions for the recognition and
Thus, the question that needs to be asked is whether

or not the lack of motivation of a foreign award necessarily
enforcement of foreign arbitral awards, lack of motivation is

not a ground for refusal such recognition and enforcement.
implies a breach of those purposes and principles (better said,

leads to a result violating those purposes and principles). And
is it clearly incompatible?
The Portuguese LAV intended to draw a parallel with

the NYC 1958 where the absence of reasoning is not a ground
for refusal of foreign arbitral awards. Hence, the main issue that
Considering those key points, I think that the lack
we should assess here is whether the foreign award was made
of motivation of a foreign award shall not produce a clear
and is valid and binding according to the law that applies to
incompatibility with the international public policy of the
the arbitration proceedings (lex loci arbitri). If the award was
Portuguese State. This understanding is broadly accepted:
not made according to those provisions, the award may well

be subject to an annulment law action in the state court of the
The courts have likewise held that other procedural
place of arbitration and such legal action will then be a ground
rules are not matters of international public policy.
to refusal of recognition and enforcement under the Art. 56,

par. 1, a), v), of the LAV, even with the option of staying
This is the case of the requirement that the arbitrators
the recognition or enforcement proceedings (cfr. the Art. 56,
should give reasons for their award. The Cour de
par. 2 of LAV). If the lex loci arbitri allows awards with no
Cassation held in one case that the failure to give reasons
reasoning one should reasonably raise the question of whether
is not in itself contrary to the French understanding
should the court of recognition or enforcement demand such
of international public policy. It is only where the law
requirement. And I think that it should not.
applicable to the procedure or the arbitration rules stipulate

that reasons must be given to that non-compliance with
In my opinion, this is the reasoning underlying the
such requirement would justify the award being set aside
LAVs recognition and enforcement of foreign arbitral awards
or refused enforcement, on the grounds that the arbitrators
legal framework, which tends to disregard such requirement in
failed to comply with their brief.
what foreign arbitral awards are concerned.
Although it may not be a decisive argument, the fact is
VI. Nevertheless, we may reasonably discuss another
that allowing a broad perspective and understanding of the public
argument to consider the absence of reasoning as a ground
policy is capable of open the door to discuss and review the merits
for refusal of recognition and enforcement of foreign arbitral
of the dispute which is a result that clearly has to be avoided.
awards. This argument is found outside the legal framework

of the LAV and is of a constitutional nature. As above
On the other hand we might well consider the strength
mentioned, the Art. 205, par. 1 of the Constitution of the
that the international public policy may lay on this issue. It is
Portuguese State provides that court decisions that are not
quite peaceful the understanding that public policy is considered
merely administrative in nature shall set out their grounds in
as a certain set of principles and legal provisions of an economic,
the form laid down by law.
cultural, social, ethical and legal nature, being of fundamental

concern to the state and to the whole society. If those principles
Once again, the scope of this article will just allow me to
and provisions are related to the relations between entities from
line out very short ideas, mostly collected from the strict literal
different countries or to the international trade in a general sense,
sense of this constitutional provision.
we may refer it as international public policy. Due to the nature

of the interests involved in such provisions (of public policy) it is
This constitutional provision grants the law (ordinary
understood that those provisions cannot be derogated nor even
law as we may categorize it under the Portuguese legal system)
waived by the parties or the respective rightholder. But the fact is
the power to lay down the how or the manner9 in which the
that under the Portuguese Law, despite the fact that motivation
motivation of court decisions is required which means that a
is a requirement that may find a constitutional harbor, arbitral
certain amount of freedom was granted to the ordinary legislator.
awards may not require their reasoning. The parties may
Accordingly, the Art. 42, par. 3 of the LAV provides that the
dispense with motivation (as seen above). By mutual consent,
motivation of arbitral awards is required unless the parties have
it is true, but in any case they may dispense with. Which leads
dispense with motivation. This new version matches exactly the
us to the conclusion that motivation is not of the same nature
former Portuguese Arbitration Act (Law n 31/86 of 29 August
or relevance as the interests beneath the public policy principles
LAV 86). The contractual freedom that underlies the right
and rules. And if this is accurate about domestic arbitration and
to resort to arbitration justifies and allows that the parties may
domestic arbitral awards more has to be about foreign arbitral
dispense with reasons of the award and no injunctive provision
awards. Theres no reason here to treat differently domestic and
was set out in this matter turning the right to motivation as of a
foreign arbitral awards.
non-waivable or non-disposable of nature. These principles would
38 YAR JULY 10, 2013
also allow the legislator to generically dispense with reasons of the
enforcement proceeding of a foreign arbitral award in Portugal
arbitral awards (which was not the case of the Portuguese Law).
will have to face and deal with the local legal tradition and with
a certain propensity of the local courts to apply the Portuguese
As far as the Portuguese jurisprudence is concerned,
law in strictly and stiffly terms to any subject matter that is
I am not aware of any court decision that challenged the
submitted to its decision. That is, it is not unthinkable that
constitutionality of such provision of the LAV (both new
a court decision will require motivation of a foreign arbitral
LAV and LAV 86).
award in any circumstance and regardless of the fact that such

requirement is not set out in the lex loci arbitri.
Thus, if a foreign arbitral award has no motivation in

compliance with a lex loci arbitri that requires no reasoning
Therefore, a cautious approach is advisable specially
for a valid and enforceable arbitral award, I dont think that a
because using such caution does not involve a great deal of
breach of this Portuguese constitutional provision arises.
effort. Motivation is therefore recommended. But what

is the extension of such reasoning? I will spare just a few
But if I am seeing right, if a party is seeking in Portugal
considerations.
the recognition or enforcement of a foreign arbitral award

that has no motivation in breach of a lex loci arbitri that
Firstly, we should bear in mind that the LAV does not
requires such requirement, we may well face a final result of a
set up any degree or extension of the motivation. It simple
decision violating this constitutional command. In other words,
provides that the arbitral award shall state the reasons upon
if a foreign lex loci arbitri requires motivation of the arbitral
which it is based.
award, a Portuguese court decision that would interpret and

construed the Art. 56 of LAV in a sense that dispenses with
Secondly, there are court decisions that require just a
reasons, recognizing or enforcing an arbitral award in breach of
simple and mere motivation. For example, the decision from
such lex loci arbitri provision would lead to a result materially
the Portuguese Supreme Court of Justice dated of 10-07-2008
breaching the above cited constitutional provision. I am not
(available at www.dgsi.pt) determined that only total and
aware of any court decision or opinion that stands for this
absolute lack of motivation would be a ground for annulment
understanding but I did not find any decision or opinion in the
of the arbitral award, but not the simple insufficiency or
reverse sense either and I cant think of a reason to eliminate
shortcoming of the reasoning of the arbitral award. (ENDNOTE:
it at its outset. Therefore, I think that preponderance has to be
Nevertheless, applying the general principles of civil procedure
granted to this constitutional argument.
and the rules applicable to the judicial decision, I think that it

is possible to draw a conclusion according to which the flagrant
VII. Anyway, it is indisputable that a recognition and
and irreconcilable contradiction between the reasoning and the
39 YAR JULY 10, 2013
determination of the award may be considered absolute lack
Further, finding, interpreting and applying the legal rules
of reasoning. However, this is an issue that time and size of
is necessary. And afterwards, it will follow the legal reasoning
this article does not allow me to deepen.) On the other hand,
which is supposed to produce and afford an intelligible
although some decisions require the statement of the facts and
determination.
the evidence produced to ascertain those facts (for example the

decision from the Portuguese Supreme Court of Justice dated
Concerning this issue, it should be borne in mind that
of 15-05-2007), one very stiff and rigid decision can be found
produce reasoning is not deciding all the legal arguments
requiring a critical analysis of the evidence produced (decision
raised by the parties. As is common understanding, a decision
of the Oporto Court of Appeals dated of 11-11-2003, available
is supposed to determine legal issues, not legal arguments.
at the above referred website).
Further, Redfern and Hunters advice still remains accurate in

face of the Portuguese Arbitration Act: The object should be
Generally, there is a common understanding that the legal
to keep the reasons for a decision as concise as possible and
criteria applicable to the court final decisions should be also
limited to what is necessary, according to the nature of the
applicable to produce a final arbitral award (for example the
dispute. The parties want the essential reasoning underlying
decision from the Portuguese Supreme Court of Justice dated
the decision, not a lesson in the law.10
of 17-05-2001 also available at dgsis webiste) and those legal

criteria are simply stated as follows: listing of the established facts,
VIII. In short: a) motivation of an arbitral award shall
designation, interpretation and application of the legal rules (cfr.
be regarded as a mandatory requirement unless i) the lex loci
Art. 659, par. 2 of the Portuguese Civil Procedure Code).
arbitri grants the parties the power to dispense with reasons

(which is the case of the Portuguese Law) and the parties
Thirdly and following last note, any decision necessarily
effectively have dispensed with reasons or; ii) the lex loci
involves a legal syllogism where the major premise is the law,
arbitri does not set out motivation as requirement for the
the minor premise is the fact (or bundle of facts) and the
validity and enforceability of the award; b) the motivation
conclusion is the determination itself. Giving this generic
should follow the Portuguese Civil Procedure Code provisions
notion, one can easily adhere to the idea of using the criteria
as a guideline: listing of the established facts, designation,
required under the Portuguese Civil Procedure Code as a (mere)
interpretation and application of the legal rules (cfr. Art. 659,
guideline where some basic milestones have to be verified, but
par. 2 of the Portuguese Civil Procedure Code); c) it is crucial that
not as a mandatory roadmap.
the arbitral award determines the issues at dispute (and all the
issues at dispute ) but not the legal arguments invoked by the
Accordingly, the first requirement for the motivation shall
parties; d) any simple, concise but nevertheless conspicuously
be a list of the facts established by the arbitral tribunal as a
thorough decision shall meet the legal requirements in what the
result of the evidentiary activity taken during the proceedings.
motivation is concerned.
I dont think that a list of the facts that remain to be proven is

required nor even a critical analysis of the evidence produced
shall be demanded. What is paramount is a set of facts that
shall be used by the arbitral tribunal to decide the dispute.
Duarte Gorjo Henriques
1. According to paragraph 1 of art. 49 of the LAV an arbitration is considered international when international trade interests are at stake.
2. There is a very disturbing decision from the Portuguese Supreme Court of Justice, dated of 19/03/2009 and available at http://www.dgsi.pt/jstj.nsf?OpenDatabase
which stated that foreign arbitral awards were not required to be recognized in Portuguese state courts as Portugal became party of the NYC 1958. This
decision was (somehow) overruled or at least forgotten by a decision from Lisbon Court of Appeals dated of 08/06/2010 and available at http://www.dgsi.pt/jtrl.
nsf?OpenDatabase that clearly stated that despite the fact that Portugal is a party bound to the NYC 1958 this would not exempt the process of recognition of
foreign arbitral awards. That Supreme Court decision was also sharply criticized by Jos Miguel Jdice and Antnio Pedro Pinto Monteiro - Portuguese edition of
Do reconhecimento e execuo de decises arbitrais estrangeiras ao abrigo da Conveno de Nova Iorque Anotao ao acrdo do Supremo Tribunal de Justia de
19/03/2009, in Revista Internacional de Arbitegem e Conciliao, 2010. Nevertheless, I think that now the new wording of the Art. 55 of LAV leaves no room
for such bold interpretation of the NYC 1958 and the Portuguese Law.
3. Nigel Blackaby and Constantine Partasides with Alan Redfern and Martin Hunter - Redfern and Hunter on International Arbitration, 5th edition, Oxford, 2009,
pag. 639.
4. Cfr. inter alia, Manuel Pereira Barrocas, Portuguese edition of Lei de Arbitragem Comentada, Almedina, 2013, pag. 202.
5. This principle is supposed to be construed from the Art. V, 1., (b) of NYC 1958, Art. 36, (1), (a), (ii) of the UNCITRAL Model Law and Art. 56, 1, a), ii) of the
Portuguese LAV.
6. Fouchard Gaillard Goldman (On International Commercial Arbitration, Kluwer Law International, 1999), pag. 948.
7. Albert van den Berg, The New York Convention of 1958: An Overview available online at
http://www.arbitration-icca.org/media/0/12125884227980/new_york_convention_of_1958_overview.pdf
8. Fouchard Gaillard Goldman (On International Commercial Arbitration, Kluwer Law International, 1999), pag. 959.
9. I should note that I collected this wording from an English version of the Constitution of the Portuguese State available at the official site of the Assembleia da
Repblica - Parliament of the Republic of Portugal: www.parlamento.pt - and the word form is used here in a sense of manner or way but not in a sense of
formality.
10. Nigel Blackaby and Constantine Partasides with Alan Redfern and Martin Hunter - Redfern and Hunter on International Arbitration, 5th edition, Oxford, 2009,
pag. 557.
40 YAR JULY 10, 2013
28 USC 1782
An American Wingman
for International Arbitration Disputes
By Andr Fonseca
Recently, the importance of 1782 to international
i) Introduction
arbitration has been particularly on the spotlight thanks to the

28 USC 1782 is a statutory provision that
authorizes U.S. courts to grant discovery assistance to individual
Chevron v Ecuador saga, having assumed a crucial role in the

latest and decisive turnover of events in the case.
persons/companies involved in disputes before a foreign or

international tribunal, outside the United States of America.
The present article intends to provide a brief insight of

Section 1782 scope and key procedural issues by looking to
The statute provides the basic requirements and parameters
the most relevant jurisprudence, its interface with international
of the scope of discovery available for interested parties seeking
commercial arbitration, and the practical importance that it
information/proof located in the United States for use in foreign
can have in the context of international arbitration procedures.
proceedings. In the words of Professor Hans Smit, principal
draftsman of the 1964 amendments to 1782, () in Section
ii) Scope of Section 1782
1782 of the Judicial Code, the United States properly makes its assistance
available in connection with foreign proceedings irrespective of its own
a) The Statute
interest or that of its nationals in those proceedings () .

1
The Statute, in its relevant part, provides the following:
The importance of 1782 for international arbitration is
therefore obvious, as this mechanism may constitute a useful aid for
28 U.S.C. 1782: US Code - Section 1782: Assistance
parties involved in arbitration proceedings. However, divergence
to foreign and international tribunals and to litigants
remains among U.S. courts regarding if this mechanism may or
before such tribunals
not be used in the context of a commercial arbitration procedure.
41 YAR JULY 10, 2013
(a) The district court of the district in which a person resides or
Regarding this last issue, although the Supreme Court
is found may order him to give his testimony or statement or to produce
did not directly decide the question of whether a commercial
a document or other thing for use in a proceeding in a foreign or
international arbitration tribunal would be considered a foreign
international tribunal, including criminal investigations conducted
or international tribunal under 1782, the Court quoted with
before formal accusation. The order may be made pursuant to a letter
approval a law review article by Professor Hans Smit that
rogatory issued, or request made, by a foreign or international tribunal
stated [t]he term tribunal [ ... ] includes investigating magistrates,
or upon the application of any interested person and may direct that
administrative and arbitral tribunals, and quasi-judicial agencies, as
the testimony or statement be given, or the document or other thing be
well as conventional civil, commercial, criminal, and administrative
produced, before a person appointed by the court. []
courts. In a footnote, the Court stated that [i]n light of the

variety of foreign proceedings resistant to ready classification in domestic
b) Scope of application
terms, Congress left unbounded by categorical rules the determination

whether a matter is proceeding in a foreign or international tribunal.
Since Section 1782 entered into force that there has

been much debate regarding its exact scope of application,
In the context of Intels v Advanced Micro Devices specific
particularly, if the mechanism can allow ancillary discovery in
proceedings, the Supreme Court held that the Commission of
the context of foreign arbitration proceedings.
the European Communities qualified as a foreign or international

tribunal within the meaning of 1782. In supporting its holding,
\Several initial U.S. court decisions followed a restrictive
the court referenced the legislative history of 1782 and noted
approach regarding the foreign or international Tribunal
that the legislature intended to include quasi-judicial bodies
requirement . However, although some decisions like National
within the meaning of the term (instead of limiting 1782 to
Broadcasting Co, Inc. v. Bear Stearns & Co. began to pave the
conventional courts). And also, that the European Commission
way to include intergovernmental arbitral tribunals, the courts
acted as a first-instance decision maker that had quasi-judicial
still showed little willingness to also include private arbitration
qualities, subject to review by a conventional court. Thus, for
tribunals within the scope of 1782 formula.
these reasons, the European Commission qualified as a quasi-
judicial body under 1782.

The Intel landmark:
Also, the Intel decision provided four important factors
The Intel Corp. v Advanced Micro Devices, Inc. decision by
in order to assist U.S. district courts in the future exercise of
the U.S. Supreme Court is often considered a game-changer in
their discretion in permitting (or not) discovery pursuant to
the way that U.S. courts interpreted 1782.
1782:
In its ruling, the Supreme Court clarified several
Whether the documents or testimony sought are within
important issues regarding the exact scope of application of
the foreign tribunals jurisdictional reach and thus accessible
this mechanism. Specifically, the Court decided on 4 important
absent 1782 aid;
procedural issues:
The nature of the foreign Tribunal, the character of the
First, it considered that Section 1782(a) does not impose
proceedings underway abroad, and the receptivity of the foreign
a foreign-discoverability requirement stating that although
government or the court or agency abroad to U.S. federal-court judicial
1782(a) expressly shields from discovery matters protected by legally
assistance;
applicable privileges, nothing in 1782(a)s text limits a district courts

production-order authority to materials discoverable in the foreign
Whether the application conceals an attempt to circumvent
jurisdiction if located there. Nor does the legislative history suggest that
foreign proof gathering restrictions or other policies of a foreign country
Congress intended to impose a blanket foreign-discoverability rule on
or the United States;
1782(a) assistance;
Whether the application contains unduly intrusive or
Second, it stated that the proceeding for which discovery is
burdensome requests.
sought under 1782(a) must be within reasonable but need not be
pending or imminent;
The Post-Intel Era:

Third, it cleared who can be considered an interested
After the Intel landmark the U.S. courts have been
person stating that The Court rejects Intels contention that
facing the question of whether the term international tribunal
interested person[s] does not include complainants, but encompasses
can also include an arbitration tribunal in different ways, which
only litigants, foreign sovereigns, and a sovereigns designated agents
can be divided into two different main splits.
();
Accordingly, although the majority of court decisions
And finally it also made several important considerations
held that 1782 should be red broadly to include both public
regarding what it could be considered a foreign or international
arbitrations (brought pursuant the existence of a BIT or governed
Tribunal.
by rules that had some form of international-government

sanction5), and also, private commercial arbitrations arising
42 YAR JULY 10, 2013
out of commercial contracts, there were still U.S. courts that
an ex parte meeting between plaintiffs lawyers and a medical
continued to follow a more restrictive approach .
expert working with the Ecuadorian court-appointed Special
Master, plaintiff lawyer Steven Donziger storming into an

iii) The importance of Section 1782 reflected on the
Chevron saga
Ecuadorian judges chambers, and Donziger declaring that

you had to play dirty with litigation in Ecuador. The Chevron
lawyers then wandered that if such behaviour was portrayed in
As it was stated above, the well-known and public Chevron
the film, other evidence could also be found in the backstage.
v Ecuador saga is a case-study of how important Section 1782

can be in the context of a dispute.
Thus, on the basis of these and similar scenes, Chevron

filed a 1782 motion in the Southern District of New York
In summary, in February 2011 a court in Lago Agria,
against Crude director Joe Berlinger, requesting over six hundred
Ecuador ordered Chevron to pay $18 billion in compensation
hours of film outtakes. The district court granted the motion
for an alleged dumped oil-drilling waste in the Amazon River
stating that [r]eview of Berlingers outakes will contribute to the goal
basin more than 20 years ago, causing illness in indigenous
of seeing not only tat justice is done, but that it appears to be done7.
people. However, Chevron defended that such decision was

tainted by illegitimacy and fraud due to unethical action by the
The evidence that was found through 1782 allowed
plaintiffs lawyers as well as the Ecuadorian government and
Chevron to present startling revelations indicating the existence
judiciary.
of fraud and corruption. Between the direct quotes attributable

to the Ecuador plaintiff lawyers were: (1) All the judges [in
The screening of the film Crude at the Sundance Film
Ecuador] are corrupt; (2) the only language . . . this judge is gonna
Festival in Park City, Utah precipitated Chevrons allegations of
understand is one of pressure, intimidation, and humiliation; (3)
denial of justice and triggered a turn of events in which 1782
[In] Ecuador . . . this is how the game is played, its dirty; (4) [The
had a decisive role.
court-appointed Special Master will have] to totally play ball with us

and let us take the lead while projecting the image that he is working for
The film depicted the case of indigenous Ecuadorian
the court; (5) [A]ll this bull***t about the law and facts . . . in the
plaintiffs in an uneven clash against Chevron over alleged
end of the day it is about brute force; (6) [We] could jack this thing
environmental damage in Ecuador. Scenes in the film depicted
up to thirty billion . . . in one day; (7) [Evidence of groundwater
43 YAR JULY 10, 2013
contamination] was smoke and mirrors and bull***t, it really is; and
(8) [I]f you repeat a lie a thousand times it becomes the truth .
8
Since the Intel landmark, the receptiveness of U.S. courts

to allow ancillary discovery in the context of international
commercial arbitrations has changed and is becoming increasingly
The material gathered following Section 1782 ancillary

discovery process caused several decisive legal consequences in
wide in the sense that the term foreign or international tribunal

can also include private arbitration tribunals.
the procedure.
Also, regardless of the final outcome of the Chevron v.
In a dramatic turn of events, the International Tribunal
Ecuador case, it is undeniable that Section 1782 portrayed a
adjudicating Chevrons denial of justice claim concluded that
fundamental role in the impressive overturn of events that
Chevron [had] made out a sufficient case for interim measures
followed, allowing the discovery of precious evidences that
and ordered Ecuador to take all measures at its disposal to suspend or
otherwise might never be within Chevrons reach.
cause to be suspended the enforcement or recognition within and without

Ecuador of any judgment against [Chevron] in the Lago Agrio case9 .
Section 1782 is therefore a very serious ally to consider

by any party involved in foreign arbitration proceedings that
Conclusion:
may which to pursue discovery in American territory.
Thus, it is clear that Section 1782 may represent a

powerful mechanism in aid of foreign arbitration proceedings.
Andr Fonseca
1. Hans Smit, Assistance Rendered by the US in Proceedings before International Tribunals, 62 Colum. L. Rev. 1267 1962.
2. In Re Application of Wilander (No 96 MISC 98, 1996; E.D. Pa. July 24, 1996) the court, finding no support in the statute or legislative history that would include
a completely non-governmental private agency such as the International Tennis Federation, ruled that this entity did not constitute a tribunal for purposes of 1782
and rejected the application for discovery. In Re Application of Medway Power Lt., 985 F. Supp. 402, 402-403 (S.D.N.Y. 1997) The court stated that: Congress
intended this statute to assist official, governmental bodies exercising an adjudicatory function. The legislative history of Section 1782 does not suggest an intent to
encompass unofficial, private arbitrations which Congress and the courts have consistently treated as creatures of a contract which a court should enforce just like any
other obligations imposed by private agreement. In re Application of Republic of Kazakhstan (168 F.3 880, 881; 5th Cir. 1999) in holding that 1782 did not apply
to private international arbitrations, the court stated it was following the Second Circuit in NBC. Like the Second Circuit, it examined 1782s legislative history and
found no contemporaneous evidence that Congress contemplated extending 1782 to the then-novel arena of international commercial arbitration.
3. In National Broadcasting Co, Inc. v. Bear Stearns & Co. (165 F.3d 184, 488-191; 2d Cir. 1999) the court concluded: The legislative history reveals that when
Congress in 1964 enacted the modern version of 1782, it intended to cover governmental or intergovernmental arbitral tribunals and conventional courts and other
state-sponsored adjudicatory bodies. The legislative historys silence with respect to private tribunals is especially telling because we are confident that a significant
congressional expansion of American judicial assistance to international arbitral panels created exclusively by private parties would not have been lightly undertaken by
Congress without at least a mention of this legislative intention.
4. Intel Corp. v Advanced Micro Devices inc. 542 U.S. 241 (2004).
5. In re Application of Roz Trading Ltd (469 F. Supp. 2d 1221; N.D. Ga. 2006); In re Application of Oxus Gold PLC (No. MISC 06-82, 2006 WL2927615, at *6 (D.N.J.
Oct. 11, 2006); In re Application of Hallmark Capital Corp. (534 F. Supp. 2d 951; D. Minn. 2007); In re Application of Babcock Borsig (Case No. 08-mc-10128,
2008 WL 4748208; D. Mass. Oct. 30, 2008); OJSC Ukrnafta v. Carpatsky Petroleum Corp. (No. 3:09 MC 265 (JBA), 2009 WL 2877156; D. Conn. Aug. 27, 2009);
In Re Application of Winning (HK) Shipping Co. Ltd. (2010 WL1796579, at *10; S.D. Fla. Apr. 30, 2010); Consorcio Ecuatoriano de Telecomunicaciones S.A. v
JAS Fowarding Inc. (No. 11-12897, 2012 WL 2369166, at*1; 11th Cir. June 25, 2012); In re Application of Mesa Power Group (Case No. 11-24335-CIVUNGARO/
TORRES, S.D.Fl. July 13, 2012).
6. El Paso Corp. V. La Comision Ejecutiva Hidroelectrica Del Rio Lempa (341 F. Appx 31 (5th Cir. 2009); Norfolk Southern Corp. v. Gen. Sec. Ins. Co. (626 F. Supp. 2d
882; N.D. Ill. 2009); In re Application of Operadora DB Mexico, S.A. (DE C.V., No. 09-cv-383, 2009 WL 2423138 (M.D. Fla. Aug. 4, 2009).
Ancillary Discover to Prove Denial of Justice, Roger P. Alford, Virginia Journal of International law Digest, 2013 on Berlinger, 709 F. Supp. 2d at 299.
Brief of Plainiff-Appelle a 20-23, Chevron v. Camacho, 667 F.3d. 232 (2d. Cir. 2012) (No. 11-1150).
7. Chevron v. Ecuador, PCA Case No. 2009-23m Order for Interim Measures, 3 (Feb. 9, 2011). On January 25, 2012, the tribunal confirmed and reissued the February
9, 2011 Order as an Interim Award, ordering Ecuador to take all measures at its disposal to suspend or cause to be suspended the enforcement or recognition within
and without Ecuador of any judgment against [Chevron] in the Lago Agrio case. (Chevron v. Ecuador, PCA Case No. 2009-23, First Interim Award, 16 (Jan. 25, 2012).
On February 16, 2012, the tribunal issued a second Interim Award finding that Chevron has made a sufficient case regarding the Claimants case on the merits against
the Respondent and ordered Ecuador to prevent the Lago Agrio judgment from becoming final and binding by precluding any certification by the Respondent that
would cause the said judgments to be enforceable against Chevron. (Chevron v. Ecuador, PCA Case No. 2009-23, Second Interim Award, 2-3 (Feb. 16, 2012). On 27
February 2012, a third interim award was issued in which the tribunal rejected a number of jurisdictional challenges presented by Ecuador (Chevron Corporation and
another v Republic of Ecuador (PCA Case 2009-23) (Third Interim Award on Jurisdiction and Admissibility) (27 February 2012). And finally, on 7 February 2013, the
Arbitral Tribunal issued a fourth interim award on interim measures in which was declared that Ecuador had violated the First and Second Interim Awards in regard to
the finalisation and enforcement subject to execution of the Lago Agrio Judgment within and outside Ecuador. As a consequence, the Respondent was ordered to show
cause () why it should not compensate the First Claimant for any harm caused by the Respondents violations of the First and Second Interim Awards. The Tribunal also
declared and confirmed that the Respondent was and remains legally obliged under international law to ensure that the Respondents commitments under the Treaty and
the UNCITRAL Rules are not rendered nugatory by the finalisation, enforcement or execution of the Lago Agrio Judgment in violation of the First and Second Interim
Awards; (Chevron Corporation and another v. Republic of Ecuador (PCA Case No. 2009-23 (Fourth Interim award on interim measures) (7 February 2013).
44 YAR JULY 10, 2013
THE 2010 REVISION

OF THE ARBITRATION RULES
OF THE CHAMBER
OF ARBITRATION OF MILAN
By Chiara Catti
CONTENTS
(hereinafter, the Rules) is the third amendment since the

creation of the Chamber in 1985, and its aim is to adapt the
1. Introduction: Arbitration state of art in Italy
Rules to the development and globalization of international
2. Bodies of the CAM: Arbitral Council and Secretariat
transactions as well as updating the CAM administration
3. General provisions and commencement of the proceedings
system to the Italian 2006 legislative reform on arbitration.
4. Confidentiality under the 2010 Rules

5. The appointment of the Arbitral Tribunal and
It should be noted that alternative resolution techniques
the independence of Arbitrators
(meaning mainly arbitration and mediation) still play a
6. The arbitral proceedings
secondary role in the resolution of civil claims in Italy. The
7. The arbitral award
2010 annual ISDACI report on the use of alternative dispute
8. Costs of the proceedings
resolution methods in Italy shows that most of the requests for
9. Future challenges and conclusions
arbitration in Italy are filed with the Chambers of Arbitration

set up by the Chambers of Commerce.1 This survey also
1. INTRODUCTION: ARBITRATION STATE

OF ART IN ITALY
highlighted that, notwithstanding the limited use of ADR in

Italy compared to other European countries such as England
or France, the total number of arbitration cases and value of
The new rules of the Milan Chamber of Arbitration
disputes have generally increased in the last years.2 Among
(CAM) entered into force on January 1st, 2010 in substitution
the arbitral institutions created by Chambers of Commerce,
of the 2004 version of the rules. The new set of rules applies
the Milan Chamber of Arbitration has distinguished itself as
to both domestic and international arbitration. The 2010 rules
one of the most active both in North Italy and internationally.
45 YAR JULY 10, 2013
For instance in 2005, CAM launched a Mediterranean project
setting the rules to fill any gap. The rationale of this change is to
involving small and medium enterprises which led in 2009 to
provide parties with greater freedom without undermining the
the creation of the Institute for the Promotion of Arbitration
core principles of the Milan institution which can be identified
and Mediation in the Mediterranean Area (ISPRAMED): a
as the control on arbitrators independence and impartiality,
private organisation with the aim of creating a shared network
the respect for due process and equal treatment of the parties
of commercial justice which protects entrepreneurs and
strictly connected to the previous principle, and efficient time/
investors within the Mediterranean Area by fostering the use
cost management of the arbitral proceedings.7
of alternative dispute resolutions methods.3

A major amendment concerns the rules applicable
In accordance with this slow but steady growing use of
to the merits of the dispute by which CAM now provides
arbitration in Italy, the Milan Chamber amended the 2004
that, in case of failure of the parties to agree on applicable
Rules to provide both domestic and international parties
substantive law, the Arbitral Tribunal shall apply the law that
with an expedited, transparent and effective administration of the
it deems appropriate taking into account the nature of the
proceedings. In order to follow this scope, the reform has
contractual relationship, the personal qualities of the parties,
a) amended the internal function of the CAMSs bodies, b)
and any other relevant circumstances of the case (Art. 3 of the
strengthened the independence of arbitrators and fostered the
Rules). In departing from the principle of the rules with the
institutions control over duration and costs, c) rendered the
closest connection to the subject matter, CAM anchors the
text shorter and clearer.
arbitral decision to more objective criteria in line with current
international practices.8
2. BODIES OF THE CAM
While the 2004 Rules provided for a strict and regulated
In light of enhancing its competence both in the domestic
timeline with regard to the request of arbitration, the statement
and international levels, the Arbitral Council - which is in charge
of defence and the filing of a counterclaim, the 2010 version
of the administration of the proceedings and issuance of all
has deleted any time-limit for the counterclaim, leaving the
related orders (an example being the challenge of the arbitrators
decision to the Arbitral Tribunal once constituted.
pursuant to article 19 of the Rules), is now composed of an

enlarged number of members (from a minimum of seven up
As previously mentioned, notwithstanding the principle
to a maximum of eleven) of both Italian and foreign experts
of a prima facie decision of the Arbitral Council on the
(mainly professor of International, Civil Procedure and
applicability of the Rules, CAM has inserted a new rule (Art. 12
Comparative Law). Under the new Rules, a minimum quorum
Lack of jurisdiction of the Arbitral Tribunal) which provides for
of the meeting requires only three members (as opposed to five
a waiver presumption on the existence, validity or effectiveness
members under the 2004 Rules) and the meetings may be held
of the arbitration agreement, or any lack of jurisdiction thereto,
by any means of telecommunication to facilitate the members in
failing any prompt objection by the parties.9
achieving the quorum and avoiding any unnecessary delay.6

4. CONFIDENTIALITY UNDER THE 2010 RULES
3. GENERAL PROVISIONS AND
COMMENCEMENT OF THE PROCEEDING
In line with many international institutions, CAM has

decided to insert a clause devoted to confidentiality itself, which
In light of the Reform, the scope of application of the new
under the new wording extends to the parties, in addition to
Rules has become wider as reflected in Art. 1 which provides:
the Arbitral Tribunal and the expert witness.10 Changing the
The Rules shall apply where so provided by the arbitral clause
generic wording of 2004 Rules providing for all information
or other agreement between the parties, however expressed
relating to the proceedings to be kept confidential, the new
(emphasis added). This new wording, as opposed to the old
Art. 8 specifies that also the arbitral award shall be kept
one referring only to the Milan Chamber of Arbitration or
confidential with the exception of where the information has
the Milan Chamber of Commerce, provides for a wider
to be used to protect ones right. This exception embodies the
application of the Rules whenever this reflects the intention of
classical scholar example of a justified breach of confidentiality
the parties. Accordingly, any reference in the arbitral clause to
being the right to enforce or challenge the award and, without
Milan Arbitration Rules or Milan Chamber will be deemed to
doubt, when the party has a legal duty to do so because the law
be sufficient to apply those Rules. This will help the institution
requires the protection of public interests.
in deciding a prima facie test on the applicability of the Milan

Rules, notwithstanding the procedural right for a party to
The issue of confidentiality in commercial arbitration
object to the application pursuant to Art. 11 (Admissibility
has been largely analysed and discussed by both doctrine and
of the arbitral proceedings). As for the procedural aspect of
jurisprudence; while most of scholars and practitioners agree
the arbitral proceeding, the new Art. 2 provides for an equal
that confidentiality is a general accepted feature of arbitration,
hierarchy of the CAM Rules and the rules chosen by the parties
its legal basis and scope of application are object of discussion.11
provided that they are consistent with the CAM Rules (in the
One interpretation, relying on the absence of a general duty of
2004 version of the CAM Rules these prevailed over the rules
confidentiality in the major arbitration conventions and, notably
chosen by the parties in case of conflict). In case of default, the
the ICC Rules and the new UNCITRAL Arbitration Rules of
Arbitral Tribunal, once constituted, still retains the power of
2010, considers that this should be a contractual aspect to be
46 YAR JULY 10, 2013
negotiated by the parties along with the determination of the
any of the parties objects to publication. Changing the opt-in
seat of arbitration or the applicable law. This interpretation
attitude of 2004 Rules, CAM has adopted an opt-out solution
is sustained by the absence of a duty of confidentiality in the
for the publication of sanitized awards.15 This dual attitude
principle European statutes on arbitration (namely, the most
of respecting confidentiality during the proceedings and
recent arbitration acts of France, United Kingdom, Germany and
ensuring transparency of publicity and publication is in no way
Italy) and the way confidentiality gives in when faced to the need
contradictory. To ensure the balance between confidentiality and
12
of publicity typical of judicial proceedings in national courts.
transparency, CAM together with Universita Carlo Cattaneo
On the other hand, there is a well affirmed movement that
(LIUC) has issued a set of guidelines for the publication of
considers confidentiality so truly and intrinsically connected to
sanitized awards and for the publication of other decisions such
arbitration itself that there is no need to regulate it. In view of this
as arbitrator challenges.16 Unlike the challenge, for which the
general acceptance - that extends to considering confidentiality
guidelines favour a systematic and updated publication, the
in arbitration agreements as an implied duty confidentiality
rationale behind the publication of the awards is to select the
itself may be regarded as customary international law. This
most relevant ones in order to create an arbitral jurisprudence
duality of opinions is reflected also in the business community
to the benefit of both the general public and the arbitration
and final users of arbitration. The 2010 School of International
professionals. The publication of the awards would, inter alia,
Arbitration Survey reveals that 86% of interviewers (general
provide: a) better selection of arbitrators and a better quality
counsel, heads of legal department and other corporate counsel
of the awards, b) relevant background for the arbitrators,
from a variety of corporations) considered confidentiality to
especially the new generation and c) more reliable data on
be very important or quite important, while 50% of them
arbitration in general, including the grey phenomenon of ad-
believed that arbitration is confidential even where the is no
hoc arbitration.17
specific clause to that effect in the arbitration rules adopted

or the arbitration agreement.13 However, some interviewers
5. THE APPOINTMENT OF THE ARBITRAL
believed that various corporation obligations may undermine
TRIBUNAL AND THE INDEPENDENCE OF
confidentiality so that the content and scope of it might vary
ARBITRATORS
case by case and could be regarded as a non serious concern.

Having said that, the position of CAM is that confidentiality is
The Rules provide for the parties to agree on the number
one of the main features of international commercial arbitration
of the arbitrators, but, in case of an even number of arbitrators,
and, therefore, should be preserved.
is the duty of the Arbitral Council to appoint an additional
14
arbitrator, unless the parties have agreed otherwise (Art. 13.3).

Turning now to the issue of publication and transparency.
This strict requirement of an odd number of arbitrators which
Art. 8.2 of the Rules provides that CAM may publish the arbitral
no other European rules of arbitration require, has been inserted
award in anonymous format, unless during the proceedings,
pursuant to the Italian arbitration Law which precludes the
47 YAR JULY 10, 2013
constitution of an even-numbered Arbitral Tribunal (see Art.
and also to delegate the above powers to one member of the
809 Italian Code of Civil Procedure).
Tribunal. In the previous version of the Rules, the arbitrators role
18
was limited to gathering evidence not excluded by mandatory

The reform also aimed at enforcing the independence and
provisions while in the amended Rules they manage and lead the
impartiality of the arbitrators as set out in Art. 18 of the Rules.
evidence-taking process, having the final word as to the relevance
The statement of independence required by the arbitrators has
and admissibility of evidence.22 The same rationale applies to the
now a larger scope; as a result, the arbitrator shall in fact disclose
new Article 26 (Expert Witness) which specifies the arbitrators
not only any relationships with parties and counsels but also with
power to appoint witnesses on their own initiative in addition to
any other person or entity involved in the arbitration which may
witnesses appointed following a party request.
affect his/her impartiality (emphasis added). In addition, CAM

acknowledges that the Arbitral Council in making the decision
The same short and clear wording that characterizes the
on arbitrators independence takes into consideration the IBA
2010 Rules is used also with regards to new claims; without
Guidelines on conflict of interests in international arbitration.
specifying anything more, the specific conditions that the new
19
claims should meet to be admitted, Art. 27, provides for the Arbitral
CAM has a Code of Ethics enclosed in the Rules which is
provided to the arbitrators upon appointment and in accordance to
Tribunal to decide on their admissibility by taking into account

all circumstances, including the stage of the proceedings.23
which they should act, regardless of the party who appointed them.
7. THE ARBITRAL AWARD
As for the appointment criteria, the Rules still followed
the 2004 third nationality rule according to which where the
The provisions concerning the deliberation and form of the
parties are of different nationalities, the sole arbitrator or the
award have been changed to adapt to the 2006 Italian Reform
chairperson of the tribunal shall be of a nationality different
that does not require a personal meeting (conferenza personale)
from those of the parties. CAM further provides a list of
to deliberate on the award, unless requested by the parties.24
incompatibilities: no members of Arbitral Council, auditors

and employees of CAM, professional partners and those with
Accordingly, the new Art. 30 provides that all the members
an ongoing professional relationship can act as arbitrators,
of the Arbitral Tribunal shall participate in the deliberation
unless the parties agree otherwise (the latter being a novelty of
of the award but that the decision may be by majority votes
the 2010 rules). Once again, the principle of parties autonomy
provided that it states the reasons of the missing signature i.e.
in choosing the procedural rules is fostered and enhanced.
the reasons why the arbitrator does not sign it.
One final remark concerns the appointing of the Arbitral
The six-month time limit running from the constitution
Tribunal in multi-party arbitration as provided in the new
of the Arbitral Tribunal to render an award is reaffirmed with
formulation of Art. 15. Either the multiple parties act as two-
the possibility for the Secretariat to extend the limit when the
sides by appointing each an arbitrator and subsequently the
parties agree or for the Council to do it ex officio whenever it
two arbitrators appoint the chairperson (or, following the will
deems it appropriate. At this regard, the CAM statistics shows
of the parties, he is appointed by another institution) or, if this
that final awards were rendered in 2010, on average, in 12,6
bilateral scheme is not respected, the Arbitral Council shall
months (improving from the 2009 and 2008 figures of 13,1
appoint the Arbitral Tribunal disregarding any appointment
months) so ensuring a fast settlement of the disputes.25
made by the parties.

Aimed at ensuring an efficient and fast proceeding, CAM
6. THE ARBITRAL PROCEEDINGS
has also set a specific time-limit for the correction of the award:
30 days to file a request, and 60 days for the Tribunal to decide on
Under section IV (The Proceedings of the Rules), a few
it. To avoid any confusion, Art. 34(3) specifies that the decision
amendments have also been made with the aim of empowering
on the correction of the award shall be considered an integral
the arbitrators so that the arbitral process will become faster
part of the award for which the parties will not be charged.
and smoother.
8. COSTS
Arbitrators can now attempt an amicable settlement of the
case referring this to the Mediation service of the CAM.20 Another
It is an established principle that the predictability of
aspect concerns third party intervention, both in case it is required
costs is one of the advantages of arbitration, especially when the
by the parties or by the third-party joinder, the 2010 Rules gives
alternative is a judicial process that can last many years and, as a
the Arbitral Tribunal the power to make the decision, after
consequence, has unpredictable costs such as it happens in Italy.
consulting with the parties and after taking into considerations
For this reason, CAM still maintains the fixed criteria of the value
all the circumstances. The decision is final, and the third-party
of the dispute to determine the costs of arbitration in accordance
joinder has to accept how the Tribunal is constituted.
to a schedule attached to the Rules which provide for a minimum
21
and a maximum fee within each value (Annexe A). Parties are
Another amended Rule concerns evidence taking; the 2010
jointly and severally liable for the costs of arbitration which include
Reform gives the arbitrators the power to take all the relevant and
arbitrators fees, CAM fees, tribunal experts fees and expenses and
admissible evidence adduced in the manner it deems appropriate
whose final determination is made by the Arbitral Council before
48 YAR JULY 10, 2013
the award is filed.26 On the other hand, when a separate advance
market is gradually but steadily growing; in this context, the
is required by the Secretariat and the latter determines different
quality of the services provided by the arbitral institutions, mainly
values of the dispute in relation to the claims of the parties, each
Chamber of Commerce, is crucial in enhancing the culture of
party shall pay an amount proportionate to its claim and shall be
arbitration among the business and professional community both
responsible only for that. To ensure an expedite administration
at local and international level. The new set of Rules are serving,
of the arbitration, the time of suspension of the entire proceedings,
on one side, the purpose of building trust in the Italian business
in case of failure to pay, has been reduced from two months to one
community in using arbitration as an expedited and efficient way
month.
Furthermore, in light of the principles of transparency
to resolve their disputes, as opposed to the unpredictable and
and control over costs which inspired the Reform, the new Art.
slow judicial system. On the other hand, the 2010 Revision, in
36(2) provides that, not only the arbitrators, but also the parties
accordance with the 2006 Italian arbitration Law, aims at providing
are informed about the final determination made by the Arbitral
a flexible, updated and in line with best international practice
Council (emphasis added).
arbitration system that should foster confidence in choosing Italy
27
28
as arbitration forum. It is too early to have data confirming if

Finally, for the first time the Rules deals with the
these two purposes have been achieved, but it is undeniable that
possibility of accepting bank or insurance guarantee as a partial
the 2010 revision of the Rules provides an opportunity to serve
payment of the arbitration fees, provided justifiable reasons.
them both. The practical results will depend on the attitude of the
29
final arbitration users in seizing this opportunity.30

9. FUTURE CHALLENGES AND CONCLUSIONS
As described in the introduction, the Italian arbitration
Chiara Catti
1. Quarto rapporto sulla diffusione della giustizia alternative in Italia a national survey by ISDACI under the patronage of the Italian Minister of Justice, available
at www.isdaci.it.
2. In 2009, 78% of the requests for arbitration filed in Italy were conducted by Chambers of Commerce with an increase rate of 30% with regard to 2008. In addition, in 2009 all the international arbitral proceedings were managed by the Chambers of Arbitration belonging to the Chambers of Commerce with an increase
of 30% with regard to 2008.
3. The ISPRAMED project is available at www.ispramed.com.
4. For an overview of the 2010 revision please see Coppo B. The 2010 Revision of the Arbitration Rules of the Chamber of Arbitration of Milan in 2010, 14 The Vindobona Journal of International Commercial Law and Arbitration, p.283-296 and Giovannini, T. Renna,V. The Italian Experience of Arbitration and the Arbitration
Rules of the Chamber of Arbitration of Milan: a Parallel View in 2010, 14, The Vindobona Journal of International Commercial Law and Arbitration, p. 297/313.
5. A complete list of the members of the Arbitral Council is available at CAMs website: www.camera-arbitrale.it.
6. See the 2010 Rules - Arbitration Council (emphasis added).
7. See in this respect the position expressed by Sali, R., Vice Secretary of the CAM, Arbitrato Amministrato in Digesto delle discipline privatistiche, sezione civile,
aggiornamento, 2007, Tomo I, UTET, Torino at p. 77.
8. See Art. 17 of the ICC Rules, 1998 version.
9. Art. 12 of the Rules provides that any objection: shall be raised in the first brief or at the first hearing following the claim to which the objection relates, or shall be deemed to
be waived.
10. See World Intellectual Property Organization (WIPO) Arts. 73 and 76, London Court of International Arbitration (LCIA) Art. 30, and American Arbitration
Association (AAA) Art. 34 which all set a duty of confidentiality. The ICC Rules, instead, provides only for the privacy of the hearing in Art. 22(3).
11 On the subject see, inter alia, Aboul-Enein, M., The need for establishing a perfect balance between confidentiality and Transparency in Commercial Arbitration, in (2007) 2.
Stockholm International Arbitration review, at p. 25 and Malatesta A. e Sali R., Arbitrato e Riservatezzza Linee guida per la pubblicazione in forma anonima dei lodi
arbitrali, CEDAM.
12. A comparative detailed study on the subject is Noussia, K., Confidentiality in International Commercial Arbitration. A comparative analysis of the Position under English,
US, German and French Law, Springer, Heidelberg, 2010.
13. The 2010 International Arbitration Survey: Choices in International Arbitration conducted by the School of International Arbitration at Queen Mary, University of
London and White & Case LLP. The entire survey could be found at http://www.arbitrationonline.org.
14. See supra Coppo B., The 2010 Revision of the Arbitration Rules of the Chamber of Arbitration of Milan in 2010, 14
The Vindobona Journal of International Commercial Law and Arbitration, p. 287.
15. On a European comparative point of view, The Swiss Chamber Court of Arbitration and Mediation 2006 Rules, adopt the same opt-out attitude in Article 43,
while the LCIA prefers to follow an opt-in rule for publication of the awards (Art. 30).
16. For a detailed discussion on the subject see Malatesta A. e Sali R., Arbitrato e Riservatezzza Linee guida per la pubblicazione in forma anonima dei lodi arbitrali, CEDAM. A list of the sanitized awards can be found in the Milan Chamber website under Studies and Documentation Center (www.camera-arbitrale.it).
17. It is worth mentioning that, pursuant to the Italian arbitration law, the award, once filed with the tribunal for a declaration of enforceability, has the same
effects of a court judgment, provided that it meets all the formal requirements (Art. 825 of the Italian Code of Civil Procedure, hereinafter, CCP). From this
provision it stems that the award could be entirely published, like a judgment, unless a party asks for the sanitation of the relative personal data. Nevertheless,
CAM adopts the view that if one party objects to the publication, the award will not be published. On this issue, see supra footnote 16, p. 97-98.
18. Art.
809 of the CCP provides that: (1) There may be one or more arbitrators, provided their number is uneven. Where an even number of arbitrators is indicated, an additional arbitrator shall be appointed by the President of the tribunal (...), unless the parties have agreed otherwise. Where the number of arbitrators
is not indicated and the parties do not agree in that regard, there shall be three arbitrators; failing their appointment, the president of the tribunal shall proceed
to such appointment (...), unless the parties have agreed otherwise. This provision should be read in connection with Art. 823 CCP which requires that: The
award shall be deliberated by a majority vote (...). It follows that to ensure a majority vote in every case there should be an odd number of arbitrators. On this
issue there is not a common approach even if the prevailing interpretation is that the odd number of arbitrators is a matter of public policy which cannot be
waived by parties nor arbitral institutions. See inter alia Sangiovanni V., Numero e modo di nomina deglia rbitri tra arbitrato ordinario e arbitrato societario, in 2005/8
Corriere Giuridico and Punzi C., Disegno sistematico dellarbitrato, I vol., Padova, 2000, p. 367.
19. The IBA guidelines are available at www.ibanet.org.
20 For further reference see www.milanmediation.com.
21. See Art. 22 of the Rules.
22. Art. 25(1) of the Rules: The Arbitral Tribunal leads the case by taking all the relevant and admissible evidence adduced in the manner it deems appropriate
(emphasis added).
23. See Art. 27 New Claims of the Rules.
24. See Art. 823 CCP.
25 The statistics are available on the CAM website at www.camera-arbitrale.it.
26 A more detailed list of the included and not included expenses in the arbitration fees is provided in Annexe B of the Rules.
27 See Art. 37(4) of the Rules.
28 The one-month time limit applies also to the suspension of the single proceeding on the request to which the payment refers. See Art. 38 of the Rules.
29 See Art. 37(6) of the Rules.
30 A partial data concerning
the average duration of the arbitral proceeding shows that, following the 2010 Revision, the goal of providing an expedited proceedings has been met. See supra footnote 25.
49 YAR JULY 10, 2013
THE LONG AWAITED PORTUGUESE

MEDIATION LAW
FUNDAMENTAL PRINCIPLES
By Thomas Gaultier
Mediation is not a new concept in Portugal.
rules regarding said systems.
Indeed, since 2001, Portugal has had legislation

governing this aspect of the law, although limited
Unfortunately, between 2001 and 2013, although public
to very specific branches. Indeed, Law No 78/2001 of 13 July,
mediation systems were put in place and granted legislative
the law of the Julgados de Paz (Justices of the Peace), sets forth the
protection and frameworks, private mediation in itself was
framework for the use of public mediation in small claims cases. In
never the object of a law, and was thus neither recognized as a
this first mediation legislation dating from over 10 years ago, and
private means of dispute resolution nor granted the necessary
the scope of which was limited to mediation taking place in small
guarantees for it to be able to function.
claims court procedures, mediation is defined as an extrajudicial

means of private, informal, confidential, voluntary, and non-adversarial
In 2009, Portugal enacted legislation that would transpose
dispute resolution, in which the parties actively and directly participate, and
the Directive of the European Parliament and of the Council
are assisted by a mediator to find, themselves, a negotiated and amicable
of 21 may 2008 on certain aspects of mediation in civil and
solution to the conflict opposing them. Moreover, in conjunction with
commercial matters. On 29 June of that year, the Parliament
this piece of legislation, a settlement is defined in Article 1248 of
approved Inventory Law No 29/2009, which added three
the Civil Code as a contract in which the parties avoid or settle a
articles related to the regulation of mediation: 249-A, C and
dispute through reciprocal concessions.
C, as well as 279-A to the Civil Procedure Code (CPC). These

articles mainly concern pre-trial mediation and the suspension
Since 2001, the public mediation system in Portugal has
of prescription terms, the homologation (court confirmation)
been divided into four different systems: the Justices of the
of agreements obtained in pre-court mediation, confidentiality,
Peace, the Family Mediation System, the Workplace Mediation
and the suspension of court proceedings by the judge.
System, and the Criminal Mediation System, each covered by

their respective legislation, providing mostly for the procedural
Articles 249-A, B, C, and 279-A of the CPC transposing
50 YAR JULY 10, 2013
the Directive were a small step for mediation in Portugal,
Regarding to scope of the mediations governed by the
although limited to very specific aspects of the process.
new ML, article 3 provides that the principles set forth in this
Portugal was therefore needing more extensive legislation on
chapter apply to all mediations carried out in Portugal, regardless
the issue, which took place in early 2013 with the adoption of
of the nature of the conflict which is the subject of the mediation.
Law 29/2013 of 19 April, establishing the general principles
Considering that the chapter this article refers to is entitled
applicable to mediation carried out in Portugal, as well as
Principles, we can assume that they will apply to any mediation
the legal frameworks of civil and commercial mediation, of
in Portugal, whether public or private, in Portuguese or in any
mediators and of public mediation.
other language, by certified mediators and even by non-certified

mediators. The purpose of defining such a broad scope of which
This article will focus on Chapters 1 and 2 of the new
mediations are to be governed by the principles laid out in the
mediation law (ML), and namely on the general principles that
new ML is truly to establish certain fundamental minimum
now apply to all mediation that take place in Portugal.
protections and guarantees to the mediation process, to the

mediators, as well as to the parties and other users of mediation
Definitions and Scope
in Portugal. Whereas prior to this ML there were no transversal

principles of mediation applicable to all mediations in Portugal,
Article 2 of the new ML provides a definition of mediation
thus making it hard for mediation to be recognized as a
which is quite different from the previous one offered by Law No
standalone process and as another credible means of alternative
78/2001 of 13 July. Indeed, the mediation is now defined as a form
dispute resolution, this new ML now provides all mediation
of alternative dispute resolution, carried out by public or private entities,
carried out in Portugal with the minimum protection it needed
through which two or more parties who are in conflict seek to voluntarily
so urgently. The main principles detailed in the new ML are
reach a settlement with the assistance of a mediator. The mediator is
those of voluntariness, equality, impartiality, independence,
also defined in the same article as an impartial and independent
confidentiality, responsibility and enforceability.
third party, devoid of powers to impose upon the parties, who assists them
in trying to construct a final settlement regarding the object of the conflict.
Voluntariness, equality, impartiality and independence
The first remark one can make regarding these definitions
Voluntariness is the first principle appearing in the new ML,
is that they are quite broad. Indeed, regarding mediation itself,
in article 4, which provides that the mediation process is voluntary,
this definition expressly includes both public and private
albeit necessary for the parties to have given their informed
mediations, carried out within the public mediation systems
consent to carry out mediation. Article 4 further provides that
or before a private mediation entity. This constitutes a major
the parties are free to revoke this consent at any time during the
leap forward in Portuguese mediation, as prior to this new
process, and that such revocation would not constitute a breach of
ML, private mediation was neither recognized nor regulated
their duty to cooperate under the terms of the CPC.
specifically. It now seems that private mediation is granted the

legitimacy it much needed, as it now has a general legislative
This article poses a fundamental principle which has not
framework granting it the essential and fundamental protections
always been adopted in all countries. Indeed, voluntary mediation
mediation and mediators need for it to develop, as we will see
can be opposed in principle to mandatory mediation, in which the
in greater detail below.
parties have an obligation to participate, to at least some extent, in

the mediation process. The choice to keep mediation voluntary in
Regarding mediators, the fact that a definition is given of
Portugal can be explained by multiples factors.
who mediators are suggests that they are now fully considered
as a professional category. Since their role is expressly defined
One of the factors is that the legislator may have seen
by law, alongside their rights and responsibilities as we will
mediation as a derivative of negotiation, whereby the parties
also see below, this law will surely trigger a trend towards the
are not held to an obligation to negotiate a settlement. This
professionalization of mediators, which was not the case until
would explain why similarly to a negotiation process towards
now. In fact, up the enactment of the new ML, anybody could
finding a settlement, parties can leave or retract from mediation
call themselves mediators, whether or not they had received
at any time.
training, were certified, or even practiced. From now on,

mediators will surely be seen as a professional category and not
merely as individuals with abilities or skills.
Another factor can be linked to the idea that in mediation,

the parties are the ones with control over the substance. As
such, they will be the ones to jointly and freely decide to be
Both above-mentioned definitions also reinforce one
held to an agreement. Since no one is imposing anything on
of the core fundamentals of mediation, and remind us that
the parties in terms of the substance, unlike in judicial court
mediation is a process geared towards a possible settlement,
or arbitration, there is no reason to obligate them to mediate
during which the neutral does not impose a solution to the
towards an end they will not agree to or simply do not even
parties. One has to infer from this that outcome of a mediation
want to consider. The freedom to choose to be bound by the
is controlled by the parties, who are the ones seeking resolution.
mediated settlement agreement is closely linked to the degree
The mediator does not seek a resolution, and in no way is it his
of commitment the parties will then have when fulfilling their
or her role; rather, mediators simply assist the parties in seeking
mediated obligations towards a resolution. Taking away some
their own settlement.
of that freedom can be detrimental to the overall commitment
51 YAR JULY 10, 2013
to the process and to the outcome if an agreement is reached.
the first restating that the mediation process is confidential

by nature, and that the mediator must keep confidential all
In addition, the fact that mediation is voluntary, meaning
information obtained during the process, not being able to
that any party can leave the process at any time, puts the
make any use of such information for her or her benefit or for
parties on a more equal stand. If we consider two parties going
the benefit of others. Section 2 further provides that anything
into mediation, where one of the parties has greater bargaining
communicated to the mediator in confidence by one of the
power, for example due to more financial resources and better
parties cannot be communicated to the other parties without
legal defence, the fact that the other party has the possibility
the first partys consent.
to leave at any moment empowers said party throughout the

mediation and brings more balance around the mediation table.
One of the most noteworthy evolutions from the
This concept of equality is also another fundamental principle
previous provision on confidentiality set forth in article 249-C
of mediation set forth in the new ML.
is definitely that anything communicated in confidence by one

party to the mediator cannot be shared with the other party.
Article 6 of the ML provides that the parties must be
This is especially relevant in the context of private sessions, or
treated equally throughout the entire mediation process,
caucuses, when the mediator has a meeting with just one of the
whereby it is the mediators role to manage the process insofar
parties during the mediation process. This second section of
as to guarantee the balance of powers and the possibility for
article 5 thus established the second degree of confidentiality
both parties to participate.
by law, which will surely reassure the parties to speak more

freely to the mediator during private sessions.
Although it was explained earlier that the mediator had

no power to impose anything upon the parties, being a non-
A surprising and somewhat disappointing omission in
deciding neutral, the mediator must nevertheless manage the
this article regards information given by one party to another
process to try and preserve the balance of powers between the
party during the mediation. Indeed, whereas it is expressly
parties. It is this balance of powers coupled with the equality
provided that anything communicated to the mediator during
of treatment of each party by the mediator that will give the
the mediation process is confidential, the law is silent regarding
mediator the credibility he or she needs to assist them in trying
information exchanged by the parties themselves. Section 4
to reach an agreement. Treating each party equally will indeed
of article 5 of the ML tries to solve this omission by stating
help creating trust between them and the mediator, enabling
that regardless of whether an agreement was reached or not,
a more open and constructive dialog. If such equality of
the content of the mediation sessions could not be used before
treatment disappears, then one of the parties will feel betrayed
a court or in arbitration. Nevertheless, this information is at
and judged by the mediator, which is definitely not the finality
risk of being used by the parties outside of a courtroom or an
of mediation nor the reasons why parties choses mediation in
arbitral tribunal, for their benefit and to the detriment of other
the first place rather than going before a court to be judged.
parties.
Article 6 of the ML also provides that the mediator must
Article 5 of the ML however provides a limit to the
act impartially, and is not an interested party in the mediation.
confidential nature of mediation, namely for reasons of public
Once again, the mediator is not the one seeking a resolution,
policy, for the protection of minors, when the physical or
it is the parties who are, with the help of the mediator to guide
psychological integrity of a person is at stake, or for the purpose
and walk them through a process that will ultimately allow
of enforcing the agreement in court.
them to build an agreement that is acceptable for them.

One issue that is not covered by the ML with regard to
Confidentiality of mediation proceedings
disclosure of confidential information by the mediator is the

case when the mediator is sued in court by one of the parties for
One of the paramount guarantees necessary for
damages resulting from a violation of the mediators duties. In
mediation to be successfully implemented is to ensure the
such as case, as drafted, the law does not permit the mediator
confidentiality of documents and communications arising out
to offer a defence using events or communications which took
of or in connection with the process. This allows the parties to
place during the mediation. The first court decisions on the
communicate freely towards reaching a settlement.
matter will surely have to decide on this issue, namely whether

the disclosure of confidential information in order to protect
Portugal had initially provided for confidentiality in
oneself in a lawsuit is justified by public policy or not.
mediation via article 249-C of the CPC, which states that except
with respect to the obtained agreement, the content of the mediation
Moreover, whereas article 249-C was silent regarding
sessions is confidential, not susceptible to be evaluated as evidence in
sanctions in case of a breach of confidentiality during or after
court except in exceptional circumstances, namely when the protection of
mediation, article 8.2 of the ML provides that the mediator
the physical or moral integrity of any person is at issue.
is civilly liable for the damage caused by a breach of his or

her duties as a mediator under the new ML. This is also an
This already quite broad provision is revoked in favour
additional argument for the parties to trust in the process
of the more complete provision contained in the ML, in article
of mediation, to speak freely to the mediator, to sometimes
5. Indeed, said article contains four sections on confidentiality,
share some sensitive information if relevant to the case, all
52 YAR JULY 10, 2013
this so that the mediator can better help the parties to reach
on the enforceability of mediated settlement agreements. It
an agreement, which being responsible for his or her ethical
provides that such settlement agreements are automatically
conduct as a mediator.
enforceable, without the need for a homologation by a court, if

they fulfil certain requirements.
Enforceability of mediation agreements

The first requirement enabling a mediated settlement
Mediated settlement agreements consist of private
agreement to be automatically enforceable is if the law does not
agreements signed by the parties to a dispute, and therefore lack
require homologation for that type of dispute. One illustration
the legal effect that would allow them to be directly executed.
of this is the case when the settlement reached fulfils the

requirement of an enforceable title as mentioned above.
Prior to the ML, a mediated settlement agreement could

be enforceable if it gained the status of an enforceable title by
The second requirement is that the parties must have legal
meeting the requirements of sections 2 and 3 of article 46 of
capacity to execute the settlement agreement. This requirement
the CPC. They state, respectively, that such titles require the
is consistent with the fact that settlement agreements are
specific documents, signed by the debtor, which contain the constitution
private contracts binding the signing parties.
or the recognition of a pecuniary obligation, the amount of which must

be determined or determinable by simple arithmetic calculation as
The two following requirements are that the mediation
established in its provisions, or an obligation to deliver a thing or to
was carried out under the terms provided by law, and that the
perform an act and the documents which, by a special provision, are
settlement agreement does not violate public policy.
attributed enforceable force.

The final requirement is that the mediator must be on
The second way a mediated settlement agreement
the list of mediators managed by the ministry of justice. This
could become enforceable was to have it confirmed by a judge
means that settlement agreements will only be automatically
pursuant to article 249-B of the CPC. This provision states that
enforceable is the acting mediator is recognised and on the lists
if the mediation results in an agreement, the parties may demand
of the Ministry of Justice. Conversely, if a foreign mediator
its confirmation by a judge. Section 3 of the same article adds
not registered on that list carries out mediation in Portugal
that the judicial confirmation of the agreement obtained in pre-trial
under the terms of the ML, the settlement agreement cannot
mediation aims at verifying its conformity with the current legislation.
be automatically enforceable and will need to be homologated

by a judge.
It should be noted, however, that the confirmation by a

judge available under article 249-B of the CPC only seems to apply
This last requirement is quite surprising, as it seems
to settlement agreements reached through public mediations. The
that it triggers a step backwards from the previously applicable
mew ML clarifies and sets forth a specific article to the end of the
legislation, restricting the possibility of automatic enforceability.
enforceability of mediated settlement agreements.
Indeed, prior to the ML, if a settlement agreement fulfilled

the requirements of an enforceable title, it was automatically
Article 9 of the new ML indeed sets forth the provisions
enforceable, regardless of who the mediator was.
53 YAR JULY 10, 2013
It is also worth noting that a settlement agreement
It is worth noting that there does not seem to be a general
reached in another European Union Member State, which
requirement to have attended a mediation course, nor to be a
respects the first requirement and does not violate public policy,
certified mediator to do mediations in Portugal. As such, the
is also automatically enforceable in Portugal provided it would
door is thus open to foreign mediator and to individuals with no
have been automatically enforceable in the Member State in
formal training who can be appointed as mediators. Although
which it was reached.
there are legal limitations involved, namely the fact that

settlement agreements cannot be automatically enforceable in
Independence
Portugal, the legislator recognizes that anybody chosen by the

parties could potentially be appointed as mediator, similarly to
Article 7 of the ML regards the principle of independence.
arbitrators.
It provides that the mediator has a duty to safeguard the

independence inherent to his or her function, as well as to
Once again, as the parties are in control of the substance
conduct him or herself with independence, free from any
of the mediation, they are free to choose anybody they wish,
pressure, whether resulting from his or her own interests,
and who would, according to them, best fulfil their needs during
personal values or external influences.
the mediation process.
The principle of independence is another fundamental
It is interesting to point out that on one hand, the
guarantee to the proper functioning of mediation as a process,
ML seems to be in favour of creating a professionalization
and it is coherent with the fact that the mediator is not an
of mediators, and on the other, still keeps the selection of
interested party. Indeed, to best help the parties, the mediator
mediators at the sole discretion of the parties, except in the
must treat them equally, and discover what they might need,
public mediation systems. Thus, anybody can potentially
want, and be interested in, so that he can help both of them
become a mediator if selected by parties, and the ML could
mutually yet respectively maximize what they are seeking in
potentially apply to all of such selected individuals.
the mediation. If the mediator is not independent, it is very

unlikely that he or she equally helps both parties to reach what
With regard to the liability of mediators, as mentioned
they would consider an acceptable resolution for themselves,
above, article 8 provides that mediators are civilly liable for
regardless of what the mediator may want.
any damage resulting from the violation of his or her duties in

mediation, namely under the terms of the ML.
Although violations to the principle of independence are

more frequently associated with the mediator being motivated
Among some of these duties, which are listed in article
by an external factor, a more frequent risk of violation of the
26 of the ML, and that are worth mentioning, mediators must
principle occurs when the parties are discussing issues which
refrain from imposing an agreement on the parties, must inform
are against the mediators beliefs or values. The mediator must
the parties on the nature, objective, fundamental principles and
be particularly careful, during mediations, to set aside his or
procedural phases of mediation, and abide by the European
her subjective and emotional reactions and emotions, and focus
Commissions European Code of Conduct for Mediators1.
on objective manners to assist the parties in what they came

to mediate. Oftentimes mediators can become uncomfortable
Conclusion
with a resolution being constructed by the parties during the

mediation process because said resolution is against what the
In conclusion, Law 29/2013 of 19 April, establishing
mediator believes is just, fair, acceptable, decent, or any other
the general principles applicable to mediation carried out in
personal interpretation of what is going on. However, the
Portugal, as well as the legal frameworks of civil and commercial
parties are the ones who will have to live with the agreement,
mediation, of mediators and of public mediation, with regard
not the mediator, so distance is sometimes necessary to remain
to the general principles of mediation set for in Chapter 2 and
objective, professional and independent, even from ones own
applicable to all mediation carried out in Portugal, now provide
judgment, values or interests.
a more complete base of fundamental rights and protections for

mediation, mediators and other users.
Competence and liability

It will have taken over 10 years for Portugal to
Whereas the previous legislative framework of mediation
recognize mediation as an autonomous means of alternative
did not refer to any general duty for training or certification,
dispute resolution, which can occur both in the public and
save for mediators acting in the public mediation systems, the
private sphere, and for which certain fundamental principles
new ML, in article 8, sets forth certain provision regarding the
such as voluntariness, confidentiality, equality, impartiality,
competence and responsibility of mediators. It provides that
independence, competence, responsibility and enforceability
mediators can participate in training in specific skills, both in
are the backbone enabling the growth of this increasingly
theory and in practice, in order to acquire the adequate skillset
popular method of resolving disputes.
for the exercise of their activity. The ML refers specifically

to courses approved by the Ministry of Justice, but is not
limitative.
1
Available online at: http://ec.europa.eu/
Thomas Gaultier
civiljustice/adr/adr_ec_code_conduct_en.pdf
54 YAR JULY 10, 2013
REPORT ON ICC YAF & YAR EVENT

IN LISBON MAY 16 2013
55 YAR JULY 10, 2013
YAR BRINGS ICC YAF TO PORTUGAL

FOR THE FIRST TIME
By Pedro Sousa Uva and Gonalo Malheiro
On 16 May 2013, YAR Young Arbitration
Conference which YAR publishes in this Edition In short,
Review
state courts definitely play a key role in awarding interim relief in
co-hosted
the
first
ICC
Young
Arbitrators Forum (YAF) event in Portugal.
respect of arbitral proceedings. However, their function should be to

complement and balance the merits of the arbitral proceedings.2
The topic of the Conference was Arbitral Tribunals and

State Courts Partners or Competitors? and included two panels
Steven Finizio followed Sofia Martins and enlightened the
composed of foreign and Portuguese arbitration practitioners,
audience about the efficiency or otherwise of Emergency
amongst whom YAR was proud to include recognized authorities
Arbitrator provisions contained in the rules of several leading
in international arbitration such as Steven Finizio and Dr.
arbitral institutions for purposes of obtaining interim relief. As
Stavros Brekoulakis, who require no introduction.
Steven Finizo explains, Emergency Arbitrator procedures are now a

feature of the AAA/ICDR, SCC, SIAC, ICC, Swiss Chambers, NAI,
The event took place at the premises of the Portuguese
CANACO, ACICA, and HKIAC rules, with others likely to follow.3
Chamber of Commerce and Industry in Lisbon, where the main
Amongst the several issues to take into account when thinking
Portuguese Commercial Arbitration Centre sits, and was attended
about resorting to emergency arbitrators for interim relief, fees
by approximately 80 young lawyers, arbitrators and practitioners.
are something to consider: The fees that must be paid by a party

that seeks emergency relief can be substantial: the ICC Rules require an
The first panel of the conference addressed the topic of
applicant to pay a US$40,000 fee (and the ICC Court may increase
Interim Relief in International arbitration. Gonalo Malheiro,
the amount); the SCC Rules require an applicant to pay a 15,000 fee
Partner at PBBR, Co-Founder and Director of YAR Young
(subject to the SCC Boards authority to modify that amount).4
Arbitration Review, was the Moderator of this first Panel.

Later, Alejandro Lopez Ortiz, Counsel at Hogan Lovells
Sofia Martins, Counsel at Uria Menndez
Proena
International LLP, Madrid, approached the topic of enforcement
de Carvalho, opened the proceedings and shared a brilliant
and interim measures from two angles: on one hand, judicial
international perspective on the concurrent powers between
enforcement of interim measures issued by arbitrators; on
arbitral tribunals and state courts regarding interim measures. As
the other hand, interim measures issued in enforcement
Sofia concludes in the article based on her presentation at the
proceedings. This presentation allowed the audience to gain a
56 YAR JULY 10, 2013
practical understanding of the raised issues.
This empirical perspective was followed by an interesting

international perspective on written witness statements by
The floor was then passed to Stamatios Tsetos, Partner at
Stavroula I. Angoura, Partner at Katsica, Samoladas, Associates and
Leboulanger & Associs, Paris and ICC YAF Regional Coordinator,
Academic research assistant at the International Hellenic University.
who provided the audience with a French flavor on the topic
In her presentation, Stavroula commented, inter alia, on the use
of interim measures in international arbitration, specifically the
of affidavits and especially the use of written witness statements
interaction between National Courts and Arbitral Tribunals.
as a common practice in contemporary international commercial
Stamatios spoke about the overriding principles applicable to the
arbitration; on the admissibility of written statements under the
intervention of the French Courts, both prior to the constitution
LCIA Rules, WIPO Rules, UNCITRAL Rules and the IBA Rules
of the Arbitral Tribunal and following the constitution of the
on the Taking of Evidence; and on good practice and on advantages
Arbitral Tribunal. The presentation concluded with the idea
and disadvantages of written witness statements. Stavroula I.
that, under French law, the arbitrators have extensive powers
Angoura concluded her presentation with some interesting remarks
related to interim relief while national courts maintain their
on timings for submission of written statements.
supportive role. This conclusion is confirmed by the new French

law provisions on domestic and international arbitration: article
1468 and 1469 of the French CPC.
The floor was then passed to Luis Guerrero, Partner at

Dinamarco, Rossi, Beraldo & Bedalque, So Paulo, who focused
on Learning to deal with different Legal Systems. Taking of evidence in
Porfrio Moreira, Associate at Cardigos & Associados,
international commercial arbitration, the topic of his presentation.
closed the panel with interesting remarks on preliminary
Luis gave the audience both an international and a Brazilian
orders from a Portuguese Law perspective. Porfrio addressed
approach to the subject, making reference to the typical features
the pros and cons of preliminary orders with reference to the
of common law and civil law countries which may mingle in the
UNCITRAL Model Law and specifically to the new articles of
taking of evidence in international arbitration.
the Portuguese Law on voluntary arbitration. Porfirio made

the following observation: At a national level, various questions
Pedro Sousa Uva, Associate at Miranda Correia
in connection with arbitral interim measures, and a fortiori with
Amendoeira & Associados, Co-Founder and Director of YAR
POs, remain unanswered, among which the crucial issue of whether
Young Arbitration Review, closed the second panel with
contravening an interim measure (including a PO) delivered by
the topic of State Court assistance in the Taking of Evidence
an arbitral tribunal may qualify as a crime under the Portuguese
under Portuguese Arbitration Law. After some preliminary
jurisdiction.
remarks about party autonomy in the procedure applicable to
arbitration and on evidence and collection of evidence under

On the second panel, the four speakers dealt with the
Portuguese Arbitration Law, Pedro addressed his topic in a
taking of evidence in international arbitration from several
practical perspective in order to answer to five main questions:
perspectives. Nuno Lousa, Counsel at Linklaters, Lisbon,
(i) Who may request the taking of evidence?; (ii) From whom
moderated the panel.
may it be requested?; (iii) What exactly may be requested?; (iv)

Where is the evidence produced?; and (v) What if the request
Dr. Stavros Brekoulakis gave an insightful perspective
comes from parties in an arbitration seated outside Portugal?7
on organizing arbitral proceedings, document production,

fact and expert witnesses and cross-examination based on
YAR Young Arbitration Review would like to thank the
the results published on the 2012 International Arbitration
International Chamber of Commerce (ICC), the Portuguese
Survey: Current and Preferred Practices in International Arbitration,
Chamber of Commerce and Industry and our sponsors Uria
conducted by the School of International Arbitration at Queen
Menndez Proena de Carvalho; Wilmer Cutler Pickering
Mary University of London, which is the second empirical
Hale & Dorr LLP and PBBR law firm for their support. YAR
research project to have been sponsored by White & Case
would also like to thank all the speakers at the Conference for
LLP. Amongst the many interesting results of the Survey, Dr.
their time and friendship, especially those coming from Brazil,
Stavros Brekoulakis referred to the significant reliance of the
London, Greece and Paris
arbitration community on the IBA Rules on the Taking of

evidence (adopted in 60% of arbitrations, either as guidelines
(53%) or as binding rules (7%), according to the cited Survey).
Pedro Sousa Uva and Gonalo Malheiro
1. http://www.iccwbo.org/Training-and-Events/All-events/Events/2013/ICC-YAF-Conference-in-Lisbon/
2. Concurrent powers between arbitral tribunals and state courts regarding interim measures, by Sofia Martins and Miguel Oliveira Martins, the latter also a Lawyer at Uria
Menndez Proena de Carvalho.
3. Interim Relief in International Arbitration: Emergency Arbitrator Provisions, by Steven P. Finizio and Jeremy Bocock, Wilmer Cutler Pickering Hale & Dorr LLP.
4. Idem.
5. Arbitral Tribunals and State Courts: Partners or Competitors? Some remarks on preliminary orders from a Portuguese law perspective, by Porfrio Moreira, Associate
at Cardigos & Associados.
6. For more information on this Survey, please read the recent article of Dr.Stavros Brekoulakis Analysis of the Survey on the School of International Arbitration on Choices
and Practices in international Arbitration, published in Edition 9 of YAR Young Arbitration Review (April, 2013).
7. State Courts assistance in taking evidence under Portuguese Arbitration Law, by Pedro Sousa Uva, Associate at Miranda Correia Amendoeira & Associados, Sociedade
de Advogados, RL.
57 YAR JULY 10, 2013
INTERIM RELIEF IN INTERNATIONAL

ARBITRATION: EMERGENCY
ARBITRATOR PROVISIONS
By Steven P. Finizio and Jeremy Bocock
The rules of leading arbitration institutions
Some commentators have described this as an effort to provide
expressly authorize arbitral tribunals to grant
all in one services or one stop shopping.4
interim relief.1 In most circumstances, an

arbitral tribunals authority to do so is concurrent with that of
Emergency arbitrator procedures are now a feature
state courts. This means that, unless the parties to an arbitration
of the AAA/ICDR, SCC, SIAC, ICC, Swiss Chambers, NAI,
agreement have agreed otherwise, they may seek interim
CANACO, ACICA, and HKIAC rules, with others likely to
relief from either the arbitral tribunal or a court of competent
follow.5 Some of the common features and notable differences
jurisdiction, and this leaves it to the party seeking interim relief
in these provisions are described below.
to determine the forum (or forums) that it believes will be most

Opt out mechanism
effective.2
Some arbitration rules suggest that, after the arbitral
In contrast to the ICCs little-used Pre-Arbitral Referee
tribunal has been constituted, the parties primary forum
procedure, which only applies if parties opt in by expressly
for interim relief should be the tribunal, and a number of
incorporating it into their arbitration agreement, the recently
institutions have taken steps to fill the (sometimes very lengthy)
issued emergency arbitrator provisions all are default rules.
gap that exists before the arbitral tribunal is constituted. In
This means that the emergency arbitrator procedure is
particular, many institutions have introduced emergency
incorporated into any arbitration agreement entered into after
arbitrator procedures which provide that the parties can seek
the rule became effective - unless the parties expressly opt out.6
interim relief from a specially appointed temporary arbitrator
The SCCs default provision goes even further than others - it
before the arbitral tribunal is constituted. These provisions
applies retroactively to arbitration agreements made before the
make arbitration potentially a more self-contained process,
rule was enacted, applying to all SCC arbitrations commencing
and, in theory at least, further reduce the role of state courts.
after 1 January 2010.
58 YAR JULY 10, 2013
Time for application
part by the parties may be unhappy when a single arbitrator

appointed by the institution makes a decision that may affect
All of the rules allow a party to request an emergency
the conduct of its business. Whether or not they should have
arbitrator before the appointment of the tribunal. Both the
been better informed about innovations in an institutions
ICC and SCC go further and allow a request to be made
rules, those parties also may not be happy to be told that they
before the arbitration commences. The ICC Rules limit this
agreed to this procedure because they failed to opt out when
by requiring that a request for arbitration to be filed within
they adopted that institutions rules.
10 days of emergency relief application, while the SCC Rules

9
provide that the emergency arbitrators decision will expire if
Process and time for decision
no request for arbitration has been filed within 30 days from

the date of the emergency decision.10 Other rules only permit
The rules all generally require that the parties have the
an emergency arbitrator request to be made with or after the
opportunity to be heard and that the emergency arbitrator issue
notice of arbitration. All of the rules provide that requests for
a reasoned decision,17 but otherwise provide the emergency
an emergency arbitrator cannot be made after the tribunal has
arbitrator with broad discretion on how to proceed and to rule
been fully constituted.
on his or her own authority.18
11
12
Limitations on scope
The institutions vary in prescribing the time for a

decision: the SCC Rules provide for a decision within five
None of the recently issued emergency arbitrator rules

permit ex parte requests.13 Nor do any of the new provisions
days;19 the ICC Rules provide 15 days,20 while the AAA/ICDR

and SIAC do not set any time limit.
purport to change the nature of the relief available to the

emergency arbitrator. Not surprisingly, none of the emergency
Urgency requirement and standard of proof
arbitrator provisions purport to permit relief against non-parties

to the arbitration, although this raises at least some potential
Most emergency arbitrator provisions do not refer to the
complications under the rules that permit interim relief to be
standard for obtaining interim relief (although a number expressly
sought (and granted) before an arbitration is commenced.
note that any relief may be subject to payment of security by the

requesting party).21 While some rules expressly require that the
Appointment of the emergency arbitrator
applicant must show that relief is needed on an emergency basis,22

or that relief cannot await the constitution of the tribunal,23 it is
All of the rules provide for the arbitral institution to appoint
not clear what, if anything, this adds to the general formulation
the emergency arbitrator, and to do so very quickly (within 24
for interim relief, which usually requires some showing of urgency.
hours under the SCC Rules;a business day under the AAA/ICDR
It may be that some emergency arbitrators will decline to grant
and SIAC Rules; or two days under ICC Rules).
The rules
relief where a the requesting party cannot meet a heightened
also generally prohibit an emergency arbitrator from acting as
standard of urgency, knowing that the request can be pursued
an arbitrator in the same dispute (without the parties consent)
further with the tribunal, but this is not yet clear.
14
and require that the emergency arbitrator be independent and

impartial.15 The rules are less clear about how challenges to an
Form of decision
emergency arbitrator will be handled on an expedited basis or

whether institutions will be less concerned about conflicts given
the temporary nature of the emergency arbitrators mandate.
Interim relief by definition is not final, and there are

significant issues with regard to enforcing interim relief granted
by arbitral tribunals in national courts under either the New
Identifying and appointing an emergency arbitrator may
York Convention or national arbitration legislation. The nature
not be a simple task for institutions, particularly if requests
of the emergency arbitrator function a temporary authority
become more routine. The number of arbitrators who are
granted to decision-maker who does not have the authority to
immediately available, capable of acting as an emergency
issue a final award means that there is even greater uncertainty
arbitrator and appropriate for the particular dispute will likely be
about whether relief granted by an emergency arbitrator can be
limited. Over time, it will be important to see how an institution
enforced.24 This is true regardless of whether the decision is
identifies and selects emergency arbitrators, how wide its pool of
characterized as an interim award or an order.
candidates is, and how transparent it is about the process.

Institutions have anticipated, but not resolved, this
While it may seem both obvious and necessary to have
enforcement issue by providing that the emergency arbitrators
the institution appoint emergency arbitrators, some less well-
decision may be in the form of either an order or an award,25
informed parties may be surprised to find that a potentially
although, notably, the ICC Rules provide that the decision is to
significant decision has been made on a very short deadline at
be made in the form of an order.26
the outset of the case by a decision-maker selected in less than

a day and in a manner which may be very different from the
process the parties described in their arbitration agreement.
End of mandate and binding effect of decision
16
Indeed, a party that expects the dispute to be decided by a
The emergency arbitrators mandate does not end when
multi-national three-member tribunal selected at least in
a decision is rendered. Rather, the mandate expires when the
59 YAR JULY 10, 2013
tribunal is constituted (which may be upon appointment or
Despite the proliferation of emergency arbitrator rules,
upon receipt of the file, depending on the rules). Until that
and the almost entirely favorable commentary on them, it is too
mandate expires, the emergency arbitrator is authorized to
early to tell if parties will embrace these new provisions, whether
modify, terminate or annul any previous decision.
there will be a significant number of requests for emergency
27
28
relief or how these provisions will affect the relationship between

None of the rules require that the tribunal reaffirm the
arbitration and national courts with regard to interim relief.
emergency arbitrators decision in order for it to remain in force

after the emergency arbitrators mandate ceases. Save for a couple
To date, there have only been a small number of emergency
of very particular exceptions (e.g., where a request for arbitration
arbitrator requests. The information that institutions have
29
has not been filed or the tribunal has not been constituted),
provided about these first cases is useful, but it is not yet
the emergency arbitrators decision remains binding until the
possible to get a sense of important aspects of how these rules
tribunal issues a final award or otherwise reconsiders the interim
will work. Based on information made available by the SCC
relief granted by the emergency arbitrator.
and SIAC, it appears that in the first few cases applying their
30
new rules, those institutions were able to appoint emergency

All the emergency arbitrator provisions make clear,
arbitrators very quickly and the emergency arbitrators very
however, that the tribunal is not bound by the emergency
quickly rendered decisions.35 It is perhaps also notable that in
arbitrators decision, and the tribunal may reconsider, amend
one out of the four SCC cases administered in 2010, three out
or vacate that decision.
of the first four reported SIAC cases, and 11 of the 14 reported
31
AAA/ICDR cases, the emergency arbitrator granted some form

Costs
of interim relief.36 It also appears that two out of three of the

first SIAC cases settled after emergency interim relief was
The fees that must be paid by a party that seeks
granted.37
emergency relief can be substantial: the ICC Rules require an

applicant to pay a US$ 40,000 fee (and the ICC Court may
increase the amount);
These very first cases tell us little about how well
the SCC Rules require an applicant to
institutions will perform their appointment function if
pay a 15,000 fee (subject to the SCC Boards authority to
emergency requests become routine (or how much information
modify that amount).
they will continue to disclose about emergency arbitrator cases).
32
33
To date, emergency arbitrators seem willing to grant relief, but

Most rules expressly provide that the emergency
it is not clear whether that reflects a more liberal approach
arbitrator may apportion the costs of the procedure, which may
(perhaps due to the temporary nature of the mandate), or how
include legal fees, subject to the tribunals final decision on cost
the interplay between the emergency arbitrator and the tribunal
allocation. How tribunals will treat the costs relating to relief
may influence the decision-making of either (or of courts).38
34
that was granted by an emergency arbitrator and later vacated

or substantially modified by the tribunal is not clear.
Nor is it clear whether the settlements that have followed

grants of emergency relief in some of these initial emergency
Effect and use of emergency arbitrator provisions
arbitrator cases reflect a meaningful pattern, although it is not
60 YAR JULY 10, 2013
surprising that a significant interim relief order made shortly after (or
would have been made to the tribunal after it was constituted).
even before) a request for arbitration can create serious settlement
However, in many cases a party may not be able to meaningfully
pressure. Whether this is a good thing is another question, and
enforce its legal rights without effective interim relief. While
some parties may be concerned that these new rules entrust such a
some parties may be happy to have a third bite at the proverbial
potentially influential decision to an emergency arbitrator hurriedly
fruit, unless and until interim relief granted by arbitrators can
appointed by the institution, not the parties. This may lead some
be routinely enforced, a national court may be a partys only
parties to avoid such provisions; others will likely view this as a
option for timely, effective interim relief.
better alternative to a similar decision from a court.
emergency arbitrator provisions cannot make arbitration one-
As things stand,
stop shopping, and parties will continue to need to weigh how

effective (and efficient) resort to an emergency arbitrator will
The availability of an emergency arbitrator certainly will
be within the context of their particular dispute.
mean that some particularly urgent interim relief requests will

now be made through arbitral institutions when before they
may have been made to a court (although it is also possible
that some of those requests would never have been made or
Steven P. Finizio and Jeremy Bocock
1. This article uses interim relief generally to refer to interim, emergency, provisional, or conservatory measures intended to preserve the status quo pending a merits
decision.
2. This often means balancing a number of competing considerations. Pursuing interim relief through an arbitral tribunal may mean greater confidentiality and may avoid
unfamiliar and unfriendly courts in the place (or places) where the other party has assets or activities. At the same time, relief granted by an arbitral tribunal may not be
enforceable and tribunals do not have the same coercive authority to compel compliance as courts.
3. For example, Article 28.2 of the ICC Rules refers to requests to a judicial authority [b]efore the file is transmitted to the arbitral tribunal, and in appropriate circumstances
even thereafter. Similarly, Article 26.3 of the SIAC Rules suggests that parties may only seek interim relief from a judicial authority prior to the constitution of the
Tribunal and in exceptional circumstances thereafter.
4. See, e.g., Justin DAgostino, First aid in arbitration: Emergency Arbitrators to the rescue, KluwerArbitration Blog 15 November 2011.
5. There are alternative approaches to addressing the delay before the arbitral tribunal is constituted, including the LCIAs procedure for expedited formation of the tribunal
(LCIA Rule 9.1) and expedited briefing (as found in ICSID Rule 39). This issue also is more difficult to address in ad hoc proceedings.
6. AAA/ICDR Rules, Art. 37.1; SIAC Rules, Sch. 1, Art. 11; ICC Rule 29.6(b).
7. SCC Rules, App. II, Art. 1.1; SIAC Rules, Sch. 1, Art. 1.1; ICC Rules, Art. 29.1.
8. SCC Rules, App. II, Art. 1.
9. ICC Rules, App. V, Art. 1.6. The emergency arbitrator can determine that a longer time period is necessary.
10. SCC Rules, App. II, Art. 9.4.(iii).
11. See, e.g., SIAC Rules, Sch. 1, Art. 1.
12. AAA/ICDR Rules, Art. 37.2; SCC Rules, App. II, Art. 1.1; SIAC Rules, Sch. 1, Art. 1; ICC Rules, Art. 29.1 and App. V, Art. 2.2;.
13. ICC Rules, App. V, Art. 1.2, 1.5; SCC Rules, App. II, Art. 3; SIAC Rules, Sch. 1, Art. 1.
14. AAA/ICDR Rules, Art. 37.3; SCC Rules, App. II, Art. 4.1; SIAC Rules, Sch. 1, Art. 2; ICC Rules, App. V, Art. 2.1.
15. AAA/ICDR Rules, Art. 37.3 & 37.6; SCC Rules, App. II, Art. 4.3 (referring to SCC Rules, Art. 15 on challenges of arbitrators), and App. II, Art. 4.4; SIAC Rules, Sch. 1,
Art. 3 & 4; ICC Rules, App. V, Art. 2.4, 2.5 & 2.6.
16. SIAC contrasts an emergency arbitrator to a conventionally-appointed tribunal.
17. AAA/ICDR Rules, Art. 37.4 & 37.5; SCC Rules, Art. 19 (by application of App. II, Art. 7 & Art. 8.2(ii)); ICC Rules, App. V, Art. 5.2 & 6.3; SIAC Rules, Sch. 1, Art. 5 & 6.
18. For example, the AAA/ICDR and SIAC rules provide that the emergency arbitrator shall expeditiously establish a schedule providing a reasonable opportunity to all
parties to be heard, and may provide for proceedings by telephone conference or on written submissions as alternatives to a formal hearing.
19. SCC Rules, Art. 8.1.
20. ICC Rules, App. V, Art. 6.4.
21. AAA/ICDR Rules, Art. 37.7; SCC Rules, Art. 32.2 (referred to in App. II, Art. 1.2); SIAC Rules, Sch. 1, Art. 8; ICC Rules, App. V, Art. 6.7.
22. SIAC Rules, Sch. 1, Art. 1.
23. ICC Rules, Art. 29.7.
24. Article 17 H of the 2006 version of the UNCITRAL Model Law provides that an interim measure issued by an arbitral tribunal shall be enforced upon application
to a competent court, but that provision does not exist in the 1985 version of the Model Law. This means that very few countries currently have an arbitration law
expressly requiring enforcement of interim measures issued by an arbitral tribunal and, other than Singapore (which has modified its law to provide for the recognition
and enforcement of relief granted by emergency arbitrators), it does not appear that any other jurisdiction expressly provides for enforcement of interim relief granted by
an emergency arbitrator.
25. See AAA/ICDR Rules, Art. 37.5; SCC Rules, App. II, Art. 1.2 (referring to Art. 32.3, which provides that an interim measure shall take the form of an order or an
award); SIAC Rules, Sch. 1, Art. 6.
26. ICC Rules, Art. 29.2, & App. V, Art. 6.1.
27. AAA/ICDR Rules, Art. 37.6; SCC Rules, App. II, Art. 1.2; SIAC Rules, Sch. 1, Art. 7. The ICC Rules do not include language expressly referring to the end of the
emergency arbitrators mandate, although such a limit is implicit in Article 29.1 of the ICC Rules.
28. AAA/ICDR Rules, Art. 37.5 (emergency arbitrator may modify or vacate the interim award or order for good cause shown); SCC Rules, App. II, Art. 9.2 (emergency
arbitrator can amend or revoke the decision upon a reasoned request of a party); SIAC Rules, Sch. 1, Art. 6; ICC Rules, App. V, Art. 6.8.
29. See, e.g., ICC Rules, App. V, Art. 1.6 (if a request for arbitration has not been filed within 10 days of receipt of the emergency application); SCC Rules, App. II, Art.
9.4(iii) (if a request for arbitration is not made within 30 days from the date of the emergency decision or the case has not been referred to a tribunal within 90 days);
SIAC Rules, Sch. 1, Art. 7 (if the tribunal is not constituted within 90 days of the emergency order.
30. SCC Rules, App. II, Art. 9.4(ii); SIAC Rules, Sch. 1, Art. 7; ICC Rules, App. V, Art. 6.c).
31. AAA/ICDR Rules, Art. 37.6; SCC Rules, App. II, Art. 9.5; SIAC Rules, Sch. 1, Art. 7; ICC Rules, Art. 29.3 & App. V, Art. 6.6.
32. ICC Rules, App. V, Art. 7.
33. SCC Rules, App. II, Art. 10. Neither the AAA/ICDR nor SIAC specify any fixed application fee.
34. AAA/ICDR Rules, Art. 37(9); SIAC Rules, Sch. 1, Art. 11; ICC Rules, Art. 29.4 (tribunal authority to reallocate costs fixed by emergency arbitrator); App. V, Art. 7.3 & 7.4
(emergency arbitrator authority to fix costs, including legal fees). The SCC Rules differ in that the decision on costs is reserved for the tribunal. See SCC Rules, Art. 10.5.
35. See Lundstedt, SCC Practice: Emergency Arbitrator, Decisions rendered 2010, Arbitration Institute of the Stockholm Chamber of Commerce, p. 11. The AAA/ICDR
emergency provision, which came into force in 2006, had been invoked fourteen times as of October 2010 but few specific details are available. See Hosking & Valentine,
Pre-arbitral Emergency Measures Of Protection: New Tools For An Old Problem, in Commercial Arbitration 2011: New Developments and Strategies for Efficient,
Cost-Effective Dispute Resolution, 199, p. 5. The ICC has not released any statistics concerning the use of its emergency arbitrator provision, which came into force on
1 January 2012.
36. Lundstedt, p. 11; Hosking & Valentine, p, 5; Bose & Meredith, Emergency Arbitration Procedures: A Comparative Analysis, International Arbitration Law Review
2012 (5), pp. 188-190.
37. Bose & Meredith, pp. 188-190.
38. Some of the questions that parties will want to consider include: whether an emergency arbitrator will be more inclined to grant relief knowing that the tribunal is not
bound by the decision or whether the opportunity for a party to pursue the requested relief from the tribunal will make the emergency arbitrator more reluctant to grant
relief, particularly in the absence of a showing of true emergency; whether a useful opportunity to educate the tribunal in the parties view of the merits and/or equities
is lost if an interim relief application is addressed to an emergency arbitrator rather than the tribunal; how much influence, if any, an emergency arbitrators decision will
have an on the tribunal; and whether an emergency arbitrators decision will influence a court asked to order relief in aid of the same arbitration.
61 YAR JULY 10, 2013
CONCURRENT POWERS
BETWEEN ARBITRAL TRIBUNALS
AND STATE COURTS REGARDING
INTERIM MEASURES
By Sofia Martins and Miguel Oliveira Martins
Introduction
some situations may occur where it is necessary to resort to the

assistance of state courts to provide that extra enforceability.
It is widely acknowledged that arbitration is

not self-sufficient. Somewhat ironically, arbitral proceedings
Therefore, although the recourse to state courts is patently
occasionally require the involvement of national courts to ensure
obvious when national legislation prevents arbitral tribunals
the proper conduct of the arbitration or even to overcome some
from issuing interim measures1, the predicament comes to
of the shortcomings that arbitration may present, particularly
surface in several situations, such as: (i) when interim relief is
when parties are recalcitrant or employ dilatory tactics or other
necessary prior to the constitution of the arbitral tribunal; (ii)
forms of obduracy, known to some as guerrilla tactics.
when interim measures are intended to affect and bind third

parties not subject to the arbitration proceedings; (iii) when
Inevitably, this paradox may lead to some troublesome
international enforceability is required outside the scope of
concerns regarding the rightfulness and extent of state courts
the 1958 Convention on the Recognition and Enforcement of
intervention, as well as the fine line that separates intervention
Foreign Arbitral Awards (the New York Convention); and (iv)
from interference.
when ex parte relief is truly relevant.2
In practice, such concerns arise, for instance, when interim
As a result, the key role that state courts may play in
measures are deemed necessary to uphold or maintain the status
conjunction with arbitral proceedings is understandable. Even
quo during arbitral proceedings and until its outcome. As a result,
so, this organic interaction between both courts cannot be
most modern arbitration legislation and institutional rules allow
mistaken for a perfect symbiosis, as it is certainly not free from
arbitral tribunals to issue interim measures of relief. Nonetheless,
idiosyncrasies.
62 YAR JULY 10, 2013
One of those quirks lies precisely in the fact that resorting
decisions and the existence, or not, of an effect of estoppel between
to a state court was historically considered by some to be a
the decisions of both state courts and arbitral tribunals.12
breach of the arbitration agreement.
Indeed, a party seeking interim relief could theoretically apply

for such measure in both types of courts, ultimately taking
In this respect, the matter was put to rest by most
advantage of the most favourable decision.
modern legislation and institutional rules, which state that

judicial interim relief is not incompatible with an arbitration
From the arbitral tribunals perspective, to prevent any
agreement. This compatibility is specially visible in the
inconsistencies, the UNCITRAL Model Law based legislations13
International Chamber of Commerce (ICC) Rules3, the
(such as the PAL14) clearly state that an arbitral tribunal may
London Court of International Arbitration (LCIA) Rules4,
reconsider its own decisions, thus not bestowing any res judicata
the UNCITRAL Arbitration Rules (as revised in 2010), as
effect on interim decisions. Still, the question remains open
well as in the UNICTRAL Model Law and Model Law based
regarding the power of the arbitral tribunal to reconsider a state
legislation, such as the PAL (Portuguese Arbitration Law)
courts interim measure and even reversing it.
and the Spanish Arbitration Act.

A preeminent line of thought15 sustains that the principle
Some reservations are also made, however, regarding the
of party autonomy endows arbitral decisions with the power
rightful receiver of the interim application, which raise some
ultimately to prevail over the state courts decisions, based on
doubts as to whether the application should be directly made
the construction that if the parties chose to submit the merits
to state courts or to the arbitrators themselves and in what
of the dispute to a specially created arbitral tribunal, this means
circumstances.
their intention was for that particular tribunal finally to rule on

the merits, not state courts. Consequently, a state court order is
Coordination of overlapping powers
deemed temporary in nature, not depriving the arbitral tribunal

from rendering further interim relief or a final remedy, even if
In order to respond to this sensitive issue, both the ICC
either of those might contradict a prior state court decision.
and LCIA rules, for example, clearly establish the so called

restricted access approach, stating that interim measures may
In addition, regardless of the principle of party autonomy,
only be applied for in state courts in limited circumstances once
common sense would still dictate a similar approach whenever
the arbitral tribunal has been formed. Hence, the state courts
new facts or evidence arise after the decision of the state court,
role is considered as complementary prior to the appointment
when the underlying criterion to reach the decision differs in
of the arbitral tribunal, and subsidiary thereafter.
both jurisdictions, or even when both courts analyse the matter

under a different law.
However, most of the UNCITRAL Model Law based

legislations (such as the PAL), establish the so called freedom
In any case, even though it seems that decisions of arbitral
of choice approach, which appears to allow for a total overlap
tribunals should prevail over those of state courts, it is up to the
of powers between arbitral and state court jurisdiction .
arbitrators themselves to decide each matter on a case-by-case
basis. As such, in practice, the freedom of choice mentioned

Even so, such freedom cannot be construed as a true carte
above is only a prerogative to the extent that a party may opt
blanche, as such prerogative shall, evidently, depend on the stage
for a certain path, even if one of the trails proves to be a dead-
of the arbitration itself. In fact, in the absence of emergency
end when conditioned by the principle of party autonomy.
arbitrator provisions prior to the formation of the arbitral

tribunal, for instance, the party seeking interim relief is forced
Likewise, by this very same line of reasoning, a measure
at that stage to resort to state courts . Conversely, if the arbitral
granted by an arbitral tribunal cannot be reviewed by a state court.
tribunal has already been formed, it is paramount to take the

respective practical implications into consideration9, such as: (i)
From the state courts perspective, and despite the
the probability of the other party not abiding voluntarily by the
UNCITRAL Model Law granting state courts the same
interim measure, thus requiring enforcement by state courts ;
powers as arbitral tribunals in respect of interim relief16, in an
(ii) the special technical and/or complex nature of the underlying
apparent total freedom of choice, case law has demonstrated
problem, thus requiring the expertise and knowledge of the
that state courts have chosen to interpret such freedom in a
arbitral tribunal; (iii) the aforementioned necessity of seeking
restrictive manner. In, fact, on the one hand, some jurisdictions
interim relief against third parties, directing the applicant to
have interpreted their roles as being complementary to the
state courts; (iv) the range of each measure available to each
arbitral proceedings. On the other hand, the decision-makers
type of court; and (v) the sensitive nature of the issue at hand,
have radically strived to avoid, at all cost, a multiplicity of
which may tilt the scale towards the confidentiality ensured by
proceedings, thus refusing to issue any potentially-overlapping
arbitral proceedings.
decision.17
10
11
Moreover, one should not ignore the theoretical
Conclusion
implications of this alleged freedom of choice.

In a nutshell, although interim relief from state courts
Firstly, emphasis must be given to the risk of conflicting
is undoubtedly necessary, given particular circumstances of a
63 YAR JULY 10, 2013
practical or theoretical nature, even when there appears to exist
unintended outcome. State courts should, in turn, interpret
a total freedom of choice between arbitral tribunals and state
the principle of compatibility as the power to grant provisional
courts, this apparent freedom should not be taken literally.
measures and complement arbitral proceedings, simultaneously

resisting applications of these powers which may, in the end,
From a practical and strategic perspective, the right
subvert the objectives of the powers themselves.
course of action and access to the most efficient remedy will

ultimately vary according to each case and the nature of the
In short, state courts definitely play a key role in awarding
relief sought. One must constantly take into consideration the
interim relief in respect of arbitral proceedings. However, their
relevant arbitration rules and the applicable procedural law or
function should be to complement and balance the merits of
arbitral legislation so as to determine whether the power to
the arbitral proceedings.
grant the relief sought is conferred upon the arbitral tribunal or

the courts and whether an application is best made to the one
or the other.
From a theoretical perspective, such an approach must
always consider the principle of autonomy of the parties
and must be cautiously interpreted to avoid an abusive or
Sofia Martins and Miguel Oliveira Martins
1. As is the case in Italy, for example. See article 818 of the Code of Civil Procedure.
2.Many national laws on civil practise do not allow for ex parte applications and even the United Nations Commission on International Trade Law Model Law on
International Commercial Arbitration (the UNCITRAL Model Law) only allows for a very limited application of ex parte relief when dealing with preliminary
orders. As is also the case of the UNCITRAL Rules (as revised in 2010), used both in ad hoc and institutional proceedings. See, in particular, article 26.
3. Article 28(2) of the ICC Rules on Conservatory and Interim Measures: Before the file is transmitted to the arbitral tribunal, and in appropriate circumstances even thereafter,
the parties may apply to any competent judicial authority for interim or conservatory measures. The application of a party to a judicial authority for such measures or for the
implementation of any such measures ordered by an arbitral tribunal shall not be deemed to be an infringement or a waiver of the arbitration agreement and shall not affect the relevant
powers reserved to the arbitral tribunal. Any such application and any measures taken by the judicial authority must be notified without delay to the Secretariat. The Secretariat shall
inform the arbitral tribunal thereof.
4. Article 25(3) of the LCIA Arbitration Rules on Interim and Conservatory Measures: The power of the arbitral tribunal (...) shall not prejudice howsoever any partys right to
apply to any state court or other judicial authority for interim or conservatory measures before the formation of the arbitral tribunal and, in exceptional cases, thereafter. Any application
and any order for such measures after the formation of the Arbitral Tribunal shall be promptly communicated by the applicant to the Arbitral Tribunal and all other parties. [...].
5. Article 9 of the UNCITRAL Model Law on Arbitration agreement and interim measures by court: It is not incompatible with an arbitration agreement for a party to
request, before or during arbitral proceedings, from a court an interim measure of protection and for a court to grant such measure.
6. Article 7 of the PAL, which simply translates into Portuguese the UNCITRAL Model Law.
7. Article 17-J of the UNCITRAL Model Law on Court-ordered interim measures: A court shall have the same power of issuing an interim measure in relation to arbitration
proceedings, irrespective of whether their place is in the territory of this State, as it has in relation to proceedings in courts. The court shall exercise such power in accordance with its
own procedures in consideration of the specific features of international arbitration.; similar to Article 29 of the PAL.
8. See Dana Rene Bucy, How to Best Protect Party Rights: The Future of Interim Relief in International Commercial Arbitration Under the Amended UNCITRAL
Model Law, American University International Law Review, Volume 25, Issue 3, Article 5, 2010, pp. 579-609.
9. See Redfern & Hunter, in Redfern and Hunter on International Arbitration, Oxford University Press, 2009, 718: The answer to the question of whether to seek
interim relief from the court or from the arbitral tribunal is likely to depend upon the particular circumstances of each case. If, for example, the arbitral tribunal is not yet in existence
(or, in an ICC case, has not yet received the file), and the matter is one of urgency [or, alternatively arbitrators do not have necessary powers to grant the measure to be applied for],
the only possibility is to apply to the relevant national court for interim measures, whilst at the same time taking steps to move the arbitration forward, so as to show that there is every
intention of respecting the agreement to arbitrate. Where the arbitral tribunal is in existence, it is appropriate to apply first to that tribunal for interim measures, unless the measures
sought are ones that the tribunal itself does not have the power to grant.
10. See Joanna Simes, Interim Measures Issued by National Courts in Aid of International Arbitration: A Brazilian Perspective, Warwick Student Law Review,
Issue 1, Volume 1, 2011.
11. See eyda Dursun, A Critical Examination of the Role of Party Autonomy in International Commercial Arbitration and an Assessment of its Role and Extent,
Yalova niversitesi Hukuk Fakltesi Dergisi, 2012.
12. See Bernd D. Ehle, Concurrent Jurisdiction: Arbitral Tribunals and Courts Granting Interim Relief, Yorkhill Law Publishing, 2007.
13. Article 17-D(1) of the UNCITRAL Model Law on Modification, suspension, termination of interim measures, which states the following: The arbitral tribunal
may modify, suspend or terminate an interim measure or a preliminary order it has granted, upon application of any party or, in exceptional circumstances and upon prior notice to
the parties, on the arbitral tribunals own initiative.
14. See Article 24(1) of the PAL.
15. Poudret, Besson ( Droit compar de larbitrage international , 2002, p. 556), Emmanuel Gaillard and John Savage ( Fouchard, Gaillard, Goldman on
International Commercial Arbitration , Kluwer Law International, 1999, pp. 722/723).
16. Article 17-J of the UNICTRAL Model Law: A court shall have the same power of issuing an interim measure in relation to arbitration proceedings [...].
17. In UNCITRAL 2012 Digest of Case Law on the Model Law on International Commercial Arbitration (in respect of the interpretation of article 17 J): a Hong
Kong court dealing with provisions of similar nature ruled that such a power should be exercised sparingly and only if there are special reasons to do so; an Indian
court also took the view that if a party elects to apply for an interim measure before the arbitral tribunal, it should not seek the same relief from a court on the
basis that multiplicity of proceedings ought to be avoided at all causes; a New Zealand court considered that the purpose of court-ordered interim measures is to
complement and facilitate the arbitration, not to forestall or to substitute for it.
64 YAR JULY 10, 2013
ARBITRAL TRIBUNALS
AND STATE COURTS:
PARTNERS OR COMPETITORS?
- Some Remarks on Preliminary Orders
from a Portuguese Law Perspective By Porfrio Moreira
1. Introduction
2.1 Pros
A preliminary order (PO) may be defined as
One may make four basic arguments in favor of the use of
an application, without notice to any other party, directing a party
POs in arbitration: the need for urgency, the need for surprise,
not to frustrate the purpose of the interim measure requested.
the need to ensure the effectiveness of an interim application
POs have by their very nature a reserved place and a prominent
(and thus of the final award), and the idea of arbitration self-
role at the intersection of the powers of arbitral tribunals and state
sufficiency.
courts. Some authors take the view that POs are not a realistic
alternative in international arbitration and therefore state courts
will inevitably remain the key actors in this regard.
The first two arguments are valuable for justifying

the existence of all POs, i.e., irrespective of their judicial or
arbitration nature. In a nutshell, POs are the only effective
The pros and cons of POs in arbitration based upon
way to deal with situations where the time required to hear the
the UNCITRAL Model Law (2006) (UML) will be briefly
other party(ies) would frustrate the purpose of the intended
addressed, followed by a few comments on the Portuguese
measure (urgency) and/or situations in which a prior hearing,
relevant legal framework. Lastly, some concluding remarks will
by raising the other partys awareness of the measure, would
be sketched.
undermine the effectiveness of the measure (surprise).
2. Pros, Cons and the Uncitral Model Law
The other two arguments are, strictly speaking, arbitration
65 YAR JULY 10, 2013
related. In fact, there are some interim measures that are only
UML provisions. Thus, the brief points made in connection
conceivable in arbitration proceedings if the parties are also
with UML are applicable in their entirety to the PAL.
entitled to request a PO in the same proceedings to ensure the

effectiveness of the envisaged interim measure. Furthermore,
It is worth noting that the prior Portuguese legal
arbitration will be more appealing to the parties if, at least from
framework on arbitration was silent as to the admissibility
a theoretical point of view, all declaratory means available to
of interim measures, let alone POs. Facing a silent law, the
the parties before the state courts are also available before the
appeal courts delivered conflicting decisions.13 As the focus of
arbitral tribunal (self-sufficiency).
courts, scholars and other lawyers was then on the fundamental

existential questions on interim measures, little attention has
2.2 Cons
been paid to the details of the legal regime of interim measures,

as one would expect. The following are some of the multiple
It is commonly argued that POs conflict with the
issues awaiting clarification.
consensual nature of arbitration and that such measures

undermine the principle of equality of arms. As for the
What types of injunction are admissible under POs? Are
consensual nature of the arbitration, it is submitted that,
only negative injunctions permitted in order to preserve a given
provided that the parties were free to set a package of rules
situation or may positive injunctions also be permitted if they
whereby the inclusion or the exclusion of POs was established,
are required to preserve a given situation?
the consensual nature of the arbitration is preserved. This is

to say that a given PO will always be anchored in the parties
contractual autonomy, at least indirectly.
Under Portuguese law, disobedience of interim measures

issued by state courts is a criminal act. This criminal feature is
undoubtedly a key element as to the effectiveness of interim
Furthermore, the principle of equality of arms is not an
measures. At first sight it is controversial whether contravening
absolute principle. As a consequence, this principle must be
an interim measure issued by an arbitral tribunal is also a
weighed against other principles. This balancing exercise does
crime, whereas, in the particular case of POs, it seems that the
not substantially differ from the one underlying the suitability
exclusion of the use of any coercive state powers leads to the
of having POs provided for in the procedural law governing the
conclusion that breaching such decisions does not qualify as a
activity of state courts, and the requirements to be set forth in
crime.14 In any case, this ought to be clarified for the sake of
order to strike an optimal balance.
legal certainty, so that the agents may predict the consequences

of their conduct as postulated by the fundamental principles of
From a pragmatic standpoint, it is correctly noted that
criminal law. One thing seems evident: if deprived of criminal
POs are difficult to enforce and virtually never accomplish[es] any
consequences, arbitral interim measures will have a minor role
serious purpose
as arbitral tribunals are deprived of coercive
compared to state court interim measures.
powers. While it is unquestionable that the concourse of

declaratory and coercive powers places state tribunals in a
Another passionate discussion is the effective civil
privileged position to deal with POs, it seems also consensual
consequences of contravening a PO, that is to say what exactly
to assert that this issue applies to all interim measures, whether
means binding on the parties? Deprived of enforceability, POs
they are POs or not, even if the qualified urgency (and surprise
may solely be a source of civil liability. Theoretically, the general
effect) that is congenital to POs exacerbates this difficulty.
liability requirements apply, and therefore once they are met,

the defaulting party is liable for the damages incurred by the
2.3 Uncitral Model Law
other party as a result of the violation of the PO. In practice,

the range of such situations that would not already be covered
The UML dedicates two articles to POs. As designed in
by contractual or tort liability, i.e., those situations where the
the UML, POs shall only be available if the parties did not agree
PO would have a true effet utile, appears, to the say the least, to
otherwise; their material requirements are: (i) fumus boni iuris;
be narrow.
(ii) periculum in mora arising out of prior disclosure to the other

party; and (iii) proportionality,6 and are subject to a procedural
requirement: they must be filed together with the request for
the interim measure to which the PO is ancillary.
4. Portuguese state courts and POs in

judicial proceedings
The general legal seat of POs in the Portuguese Civil

As for the regime of POs, the UML provides for: (i) a
Procedure Code (CPC) is article 385. In broad terms, POs
differed adversarial principle ; (ii) a limited time of effectiveness
are subject to the same conditions as arbitral POs under
(20 days); and (iii) its possible conversion into an interim
UML. They are similar to all other interim measures, with the
measure.
exception of the underlying differed adversarial principle.
10
A PO is not an award, it is binding on the parties
but not enforceable.
11
However, judicial POs are fully enforceable and, as with

3. Portuguese legal framework on POs in arbitration
all other interim measures, their breach will lead to criminal

liability. Some judicial interim measures are by their very
The new Portuguese arbitration law
(PAL) dedicates
nature POs, as it is the case of the precautionary attachment.15
two articles to POs which mirror, almost word-for-word, the
A further manifestation of a differed adversarial principle is
12
66 YAR JULY 10, 2013
the procedural measure to challenge shareholders meeting
As far as arbitral POs are concerned, PAL is almost a
resolutions: when notified to reply to the request for the interim
carbon copy of the UML, therefore providing for a generous
measure, the relevant company is by virtue of law prevented
approach to these measures.
from taking any actions pertaining to the execution of the

resolution at issue.16
At a national level, various questions in connection

with arbitral interim measures, and a fortiori with POs, remain
Interestingly, the CPC provides for an ex parte stricto

sensu measure: the suspension of construction order.
unanswered, among which the crucial issue of whether
Under
contravening an interim measure (including a PO) delivered by
this measure, a party may directly request the other party
an arbitral tribunal may qualify as a crime under the Portuguese
to immediately suspend a construction by means of a verbal
jurisdiction.
17
communication, provided that within five days judicial

ratification is requested.
Theoretically, nothing prevents national laws from

providing for enforceable arbitration POs: are these not
5. Concluding (yet very preliminary) remarks
disposable rights, after all?
POs limits and problems derive from their very nature

and this discussion should therefore not be deemed as primarily
arbitration related. In fact, it is not unreasonable to say that
one has to balance common principles both in arbitration and
judicial proceedings.
Porfrio Moreira
1. This article is merely a written summary of a brief oral presentation in the ICC-YAF conference Arbitral Tribunals and State Courts: Partners or Competitors? hosted
by YAR that took place in Lisbon on 16 May 2013.
2. Peter J.W. Sherwin and Douglas C. Rennie sustain that POs are [] truly dire situations where parties still must seek interim relief from a national court, particularly
as ex parte relief is not a realistic alternative in international arbitration Interim Relief Under International Arbitration Rules and Guidelines: a comparative analysis, in The
American Review of International Arbitration, vol. 20, no. 3, 2009, pp. 317-366, p.319.
3. Gary b. Born, apud Peter J.W. Sherwin and Douglas C. Rennie, op. cit., note 78, p. 330.
4. Articles 17 B and 17 C of UNCITRAL Model Law on International Commercial Arbitration 1985 with amendments as adopted in 2006.
5. Article 17 B (1) of UML.
6. Article 17 B (2) and (3) of UML.
7. Article 17 B (1) of UML.
8. Article 17 C (2) of UML.
9. Article 17 C (4) of UML. Pursuant to the UML, the effectiveness period is counted as of the issuance of the PO, although it seems more logical to do so as of the
date of its service.
12. Law 63/2011 of 14 December.
13. In this respect cf. Jos Miguel Jdice, As Providncias Cautelares e a Arbitragem: Em que Estamos?, in Estudos em Homenagem ao Professor Doutor Carlos Ferreira de
Almeida, Almedina, 2011, vol. III pp. 657-679, p. 659 et seq. and the summary of case-law therein.
14. A detailed discussion on this topic is clearly beyond the scope of this article. Such a discussion would notably entail the assessment of the nature of the arbitral
tribunals under the Portuguese jurisdiction as well as an analysis on the (non) fulfilment of the requirements deriving form the principle of legal certainty nullum
crimen sine lege.
15. Articles 406-408 of the CPC.
16. Articles 396 and 397 of the CPC.
17. Article 412 of the CPC.
67 YAR JULY 10, 2013
LEARNING TO DEAL WITH

DIFFERENT LEGAL SYSTEMS
Taking of Evidence in International
Commercial Arbitration
By Luis Fernando Guerrero
1. Introduction and Objective
Lawyer should try to take advantage of the procedure with

minimal effort and expense to his client. A more effective legal
This text aims to analyze the latest trends in

the proceeding taking of evidence in international commercial
system may be the key to form this type of lawyer, ensuring his/
her survival between legal systems.
arbitration processes, in light of civil law and common law legal

The focus on providing information and documents can
systems.
be the key to success in a case.

It seeks to determine how this information and systems
exchange deal with dispute resolution, which system has greater
The fact is that practice changes this scenario of apparent
influence over the other, and how its users try to adapt to this
tranquility. In truth, what is seen in international commercial
new reality.
arbitration is the adoption of common law rules rather than

civil law rules. Only under certain circumstances does civil
2. General Aspects
law rule prevail, perhaps due to a higher economic influx in

countries of common law tradition, which is the case of the
Doctrine has stressed, that civil law and common law
United States and England.
systems tend to be similar. As Ren David says, In England

and France, although the pathways used to discover the rules of
Therefore, the effort of civil law lawyers should be greater,
law were different, there was always the same basic conception
which has in fact been the case. Besides this reality, another
of law: the law is, above all, reason, lex est aliquid rationis.
phenomenon observed is the creation of specific rules for
international commercial arbitration. In other words, when we

There is a clear demand for a pragmatic, and in certain
think of procedural techniques that are traditional in common
ways, even calculating, analysis of producing evidence. The
law, such as discovery, what we have in fact is a technical
68 YAR JULY 10, 2013
homonym, more suited to international commercial law.
emotions, arbitrators must know the reality that is placed

before them, using more familiar rules trying to increase the
Thus, the actions of civil law lawyers in common law
degree of the Parties reliability in the process.
generates a new and different reality for operators in both

systems. Arbitration therefore has the power to to mix interesting
These two examples show that arbitrators will need
characteristics of different legal families, aiming to enhance its
skills and knowledge to conciliate different perspectives of
efficiency and dynamic as a method of dispute resolution.
the world. As was seen, arbitrators must be able to mitigate
against cultural differences and ensure an interpretation of due

3. Specific Aspects Due Legal Process
legal process, between the parties, ensuring legal security and

efficacy in decisions.
The interaction between systems is merely a general part

of the problem.
Specific questions arise, demanding the attention of
those who act in international arbitration.
4. ICA
The ICA has an important role to play when trying to
understand the taking of evidence and its trends in international
commercial arbitration. The lack of information regarding
The first of these points is the use of new technologies.
arbitration awards makes the work accomplished by the ICA

an essential reference for students and professionals.
Without a doubt, using new technologies is an important

aspect and represents a powerful instrument for the development
We would like to mention two interesting guidelines
of international commercial arbitration. Technology reduces
related to the proceeding of taking evidence in international
distances and allows for more efficiency in this method of
commercial arbitration.
dispute resolution.
The first of these cases dates from 1990, 1998 to be
On the other hand, the use of systems such as Skype
more precise, regarding a commission agreement involving two
to perform hearings can generate doubts and risks of data
companies, African and French. It was registered as Case No.
protection, creating problems regarding confidentiality in
9333/1998.3
arbitration processes.
In this case, the importance of burden of proof and
The second point is the performance of the arbitrator
limits that the arbitrators had to analyze was discussed. It was
with regard to the arbitration process permeated by different
recognized that arbitrators had powers to define only indications,
legal traditions.
from the perspective of one of the Parties, that could be used as

basis for a ruling, and up to what point the arbitrator could or
The indication of experts, for instance, which is very
should investigate, especially in a corruption situation.
common in international commercial arbitration, can be a very

divergent issue. Who has this duty? The arbitrator or the parties?
The case is important, therefore, given its central idea

on burden of proof. It refers to an analysis designated to
In the civil law tradition, the arbitrators usually indicate

the experts since they are reliable professionals. In common
arbitrators which can define the proper means for forming their
convictions, following the analysis of controversial facts.
law, this indication, in general, comes from the parties and it

is up to the arbitrators to appoint a third, neutral choice who
The discussion can take a long time, especially when
will be responsible for technical analyses of the matter that the
there is discussion on which party lays the burden of proof in
Parties have referred to the arbitrator.
the arbitration process. However, when it comes to international

commercial arbitration, a context in which there is a gradual
On the other hand, how will the production of oral
search for an improvement of the acts and conduction of
evidence be approached? Will a Cross Examination or a Direct
arbitration process, the burden of proof assessed by the arbitrator
Examination be used? The arbitrator has the dilemma of
becomes an important aid to analyzing and judging the case.
ensuring due legal process while maintaining economy of time

and money during the managed processes.
The second case refers to the development of seismic

machinery to explore petroleum blocs involving an African
Arbitrators must analyze the parties and lawyers

characteristics involved in the arbitration process. Therefore,
State, a
company of Hong Kong and a Chinese company,
registered as Case No. 10982/2001.4
they must be concerned with using arbitration flexibility as

an advantage, and with the parties being able to elicit the
maximum in the shortest time possible.
In this situation, the falseness of a document that reveal

the parties intentions is subject of discussion. The parties good
faith and loyalty were tested as a necessary type of behavior.
The greater the will of arbitrators granting autonomy

to the parties, the simpler and more economical will be the
The taking of evidence should be conducted by arbitrators
production of evidence . As it is a procedure that involves
in light of the beginning of the due legal process. The parties,
69 YAR JULY 10, 2013
on the other hand, should act with loyalty and good faith in
As can be seen, also in the context of national or
order to perform the arbitrators procedure, which can only
international arbitration in Brazil, the solution provided is
occur with the cooperation of the States legal system.
similar to the solution adopted in international commercial

arbitration
5. Brazilian Reality
6. Conclusion
In Brazilian law, the arbitration law, does not indicate
trends that can be observed.
Simplicity seems to be a relevant principle when we deal

with evidence production in international arbitration.
Nevertheless, the feasibility of the arbitrators decisions

is ensured by the Judiciary, under Article 22, 2 and 4, of the
Arbitration Law, in a clear regime of cooperation.
On the other hand, the definition of acceptable rules is

urgently required. Knowledge and preparation avoid surprises
and, consequently, complaints.
On the other hand, the control of the due legal arbitration

process can be accomplished a posteriori by the Judiciary upon
Due legal process, regardless of the system involved,
a request filed by the party deemed damaged. The latter will
should be applied to any analysis that arbitrators perform
be able to handle the annulment of the arbitral award action,
regarding the taking of evidence in the arbitration process. In
based on Articles 32 and 33 of the Arbitration Law.
the absence of strict rules and the validity of a dynamic system,

this is the only way to ensure justice in decisions, effectiveness
From the analysis of two annulment actions handled in
of sentences, and arbitrary processes.
Brazil, it was seen that two relative points of the expert proof
were very important.
In this regard, whenever necessary, cooperation between

arbitrators and robed judges will be essential to ensure a quiet
The first of these cases refers to the need for specialization

of the expert in the subject for which he was summoned to give
and effective opportunity of evidence production in arbitrary

processes.
his judgment. In other words, an accounting expert cannot

5
judge an economic matter, and vice-versa.
Having said this, the final perspective is optimistic.

It seems to be a universal perspective of reasonability over
On the other hand, friendship between an expert and
Probation Instruction in international commercial arbitration.
one of the companies directors who is part of the arbitration

process justifies the suspension on feasibility grounds of the
arbitral award entered.6
Luis Fernando Guerrero
1. RENE DAVID, Les Grands Systmes du Droit Contemporains, HERMINIO A. CARVALHO (trad. Fr.), Os Grandes Sistemas do Direito Contemporneo, So
Paulo, Martins Fontes, 1998 p. 335.
2. JEAN-JACQUES ARNALDEZ, YVES DERAINS e DOMINICQUE HARSCER, Collection of ICC Arbitral Awards, The Hague Wolters Kluwer, 2009, pp. 575-587.
3. JEAN-JACQUES ARNALDEZ, YVES DERAINS e DOMINICQUE HARSCER, Collection of ICC Arbitral Awards, The Hague Wolters Kluwer, 2009, pp. 677-688.
4. TJSP - 17a So Paulos Civil State Court Award, case n. 583.00.2005.005.059-7.
5. TJSP Interim Relief Appeal n. 0134527-69.2012.8.26-0000.
6. TJSP Interim Relief Appeal n. 0134527-69.2012.8.26-0000.
70 YAR JULY 10, 2013
STATE COURTS ASSISTANCE

IN TAKING EVIDENCE UNDER
PORTUGUESE ARBITRATION LAW
By Pedro Sousa Uva
The present article is based on the authors
Arbitral Tribunals have absolutely no control over entities that
presentation at the ICC YAF & YAR Conference
are not bound by the arbitration agreement.
Arbitral Tribunal and State Courts Partners

or Competitors? which took place on 16 May 2013 at the
Portuguese Chamber of Commerce and Industry, Lisbon.
This means that in such cases a party will need the

assistance of a State Court to compel the counter-party or a
third party to produce a document or a witness. Court assistance
I. Introduction
of this sort is, of course, available only when provided for by

national law. This is the case of the Portuguese Arbitration Law,
When submitting evidence, a party may be faced with
as we shall see later.
documents or witnesses that are unavailable for numerous

reasons, notably when documents related to the case are no
longer obtainable or simply because a witness refuses to testify. It
II. Party autonomy in the procedure applicable to

arbitration
may become challenging for the strategy of a party in arbitration

when the counter-party or third parties to the arbitration
One of the advantages of arbitration lies in the freedom
proceedings refuse to cooperate in the taking of evidence. It is
of the parties to choose the adequate procedure rules to govern
challenging because, unlike State Courts, Arbitral Tribunals lack
their arbitration. The principle of a partys procedural autonomy
the coercive powers to enforce such requests for taking evidence.
is acknowledged on an international basis, notably under the

New York Convention on the Recognition and Enforcement
Arbitral Tribunals obviously have the authority to conduct
of Foreign Arbitral Awards (NYC) in Article V(1)(d),1 and on
the arbitration, give orders and render final awards, but they do
a national basis, in most modern arbitration laws based on or
not have the power to enforce such decisions. They may even
inspired by the UNCITRAL Model Law,2 the latter being the
draw adverse inferences against a party who refuses to cooperate,
case of the Portuguese Law on Voluntary Arbitration (PLVA):
but Counsels are aware that adverse inferences are not enough
to win a case as they merely represent indirect evidence that is
Article 30.2 of the PLVA reads as follows:
subject to the arbitrators assessment. The challenge becomes

even greater with regard to third parties to the arbitration because
2 - The parties may, until the acceptance by the first
71 YAR JULY 10, 2013
arbitrator, agree on the procedure to be followed by the Arbitral
2 - The preceding paragraph is applicable to the requests
Tribunal in the conduct of the proceedings, respecting the
to take evidence addressed to a Portuguese State Court, in case
fundamental principles referred to in the preceding paragraph of
of arbitrations seated abroad.
this article and the mandatory provisions of this Law.

To address this subject from a more practical perspective
When choosing the procedure to follow, the parties will also be
we can ask five main questions: (i) Who may request the taking
choosing the set of rules on evidence, either in a particular law, the rules
of evidence?; (ii) From whom may it be requested?; (iii) What
drafted by the parties counsels or those contained in the regulations
exactly may be requested?; (iv) Where is the evidence produced?;
of an arbitral institution. When choosing Portugal as the seat of
(v) What if the request comes from parties in an arbitration
arbitration, one needs to be aware of rules on evidence that apply to
seated outside Portugal?
arbitration governed by Portuguese Law and those that do not.

(i) Who may request the taking of evidence?
In Portugal, it is commonly understood that the substantive
rules on evidence set out in the Civil Code,4 notably those which
deal with matters such as the burden of proof, the legal means
Portuguese Arbitration Law has followed a different

perspective from the one contained in the Model Law.
of evidence and their weight, apply to arbitration proceedings

governed under Portuguese Law. This could not be otherwise
The Portuguese legislator understands that the requests
for the security of parties when performing legal transactions.
for obtaining evidence must come from the parties themselves
However, Arbitral Tribunals have the power to determine the
and not from the Arbitral Tribunals, because after all, arbitration
admissibility, relevance and weight of any evidence, as per article
is a procedure of the parties. It has a contractual nature, and
30.4 of the PLVA, powers which Arbitrators should, however,
therefore it should be the parties that decide what they need or
exercise with caution in order to avoid refusing evidence which is
do not need to prove their case.
essential for the process of getting to the truth.

Despite such party autonomy, the Portuguese legislator
On the other hand, it is commonly understood that the
also understands that the Arbitral Tribunal should approve a
rules on evidence set forth in the Civil Procedure Code regulating
partys request for taking evidence. In fact, if Arbitral Tribunals
the taking of evidence do not apply to arbitration, unless the
did not control the parties requests, this could lead to abuses,
parties expressly agreed that they should.
notably attempts from a respondent in arbitral proceedings to
block an arbitration by resorting to delay tactics (for instance,

Naturally, the choice of procedure by the parties has
requesting rogatory letters for obtaining statements from
its limits. Article 30 of the PLVA sets out those limits when
witnesses living abroad) or any other ways that would represent
establishing that party autonomy is subject to the mandatory
excessive court assistance. After all, arbitrators have the duty to
rules of the applicable national law, which under most developed
conduct the proceedings in an effective way.
arbitration statutes are limited in scope (due process). Every

jurisdiction has its own standard of due process. In modern
Now, because there is no rule without exceptions, Arbitral
European arbitration laws such as the Portuguese one they
Tribunals may request the ex officio production of evidence to
usually do not differ that much in substance. The fundamental
Portuguese Courts in the following cases:
principles under the PLVA are three:

Arbitration seated in foreign countries;
- Respondent is summoned to present his defense
(Article 30.1 a));
- Parties are treated with equality (Article 30.1 b)) ;
The applicable (foreign) arbitration law allows it;

The competent Portuguese Court allows it (Article 29.2
of the PLVA).
- Each party is given an opportunity to present his

case (Article 30.1 c))7
This means that contrary to the Model Law and many

other laws based on it, Portuguese Courts may very well assist
III. State Court Assistance in taking evidence
an arbitration taking place, for instance, in Spain, provided

that Spanish arbitration Law allows it and the Portuguese court
When we talk about State Court assistance in taking
accepts the concrete production of evidence. (In international
evidence under Portuguese Law we are basically dealing with
arbitrations, Portuguese State Courts may depart from Portuguese
article 38 of the PLVA , which reads as follows:
procedural rules, as per Article 29.2 of the PLVA.)
Article 38
(ii) From whom may evidence be requested?
State court assistance in taking evidence

According to Article 59.4 of the PLVA, the request from a
1 - When the evidence to be taken depends on the will of
party in a pending arbitral proceeding must be made before the
one of the parties or of third parties and these refuse to cooperate,
Court of First Instance (at the seat of arbitration) and not the
a party may, with the approval of the Arbitral Tribunal, request
Court of Appeal.
from the competent State Court that the evidence be taken before
it, the results thereof being forwarded to the Arbitral Tribunal.
The Court of Appeal is actually the competent court
72 YAR JULY 10, 2013
under the PLVA for most of the matters where court assistance
personal depositions from the parties (themselves), while under
is required, among others: the refusal or removal of arbitrators;
the Civil Procedure Code, witnesses are always third parties, and
the appeal against the arbitral award; the challenge of the arbitral
one may only request to hear the counter-party (depoimento de
award; the recognition of the arbitral award handed down in an
parte), not the party itself.
arbitration located outside Portugal.

(iv) Where is the evidence produced?
Thus, the competent Court of First Instance will deal with
only a few matters, one of which is the taking of evidence.
Certain arbitration laws establish that evidence should be

produced at the Arbitral Tribunal. The Portuguese legislator took
(iii) What assistance may be required?
the opposite view: evidence must be produced at the competent

State Court, not in the Arbitral Tribunal, and the results should
The legal forms of evidence that a party may request are usually
then be sent to the Arbitral Tribunal.
documentary evidence and testimony, but any other legal form of

evidence is possible, provided that it is allowed in the Portuguese
Civil Code (e.g. inspection) or in any other applicable law.
This means that the arbitrators cannot participate in State

Court hearings, although nothing seems to forbid them from
being present at such hearings.
Therefore, a party may request and the State Court may order,
for instance, the disclosure of documents; the Court may compel
witnesses to appear or order witness statements; it may order the
8
(v) What if the request comes from parties in an

arbitration seated outside Portugal?
production of other legal forms of evidence, notably inspection

evidence or expert evidence; it may secure the preservation of
evidence; and it may anticipate the taking of evidence.
9
10
Regarding international State Court assistance in taking

evidence, Portuguese Arbitration Law is a step ahead of the
UNCITRAL Model Law and other arbitration laws as it admits
It is worth mentioning what the rules of the Commercial
requests for taking evidence from foreign Arbitral Tribunals.11
Arbitration Centre of the Portuguese Chamber of Commerce and

Industry (ACL Rules) say about legal means of evidence. Article
As mentioned above, the Portuguese State Court must
30 of the ACL Rules allows any evidence legally admissible or
comply with both: (i) foreign applicable procedural rules; and
agreed between the parties to be produced before the Arbitral
(ii) applicable procedural rules for the obtaining of evidence in a
Tribunal, as follows:
Portuguese Court.
Article 30
1. Any evidence legally admissible or agreed between the
parties may be produced before the Arbitral Tribunal.
2. On its own initiative or at the request or one or both
of the parties, the tribunal may:
IV. Final remark.

Parties in arbitration need the assistance of State Courts
in obtaining unavailable evidence. This means that State Courts
should be considered as a real partner to Arbitral Tribunals, not their
competitors. This partnership is as good as the arbitration law that
a) Hear personal depositions from the parties;
regulates court assistance in collecting evidence; the Portuguese
b) Hear third parties;
Arbitration Law did successfully provide such regulation.
c) Arrange for the delivery of documents in the possession

of the parties or third parties;
d) Appoint one or more experts, define their terms of
reference and receive their depositions or reports;
e) Conduct first hand examinations or inspections.
Practice will show whether the mechanism and solutions

provided in the PLVA serve the purpose of collaboration between
Arbitral Tribunals and State Courts in a matter as crucial as the
taking of evidence in arbitration.
A major difference between this and the rules of the

Portuguese Civil Procedure Code is that in arbitrations under
the Commercial Arbitration Centre of ACL it is possible to hear
Pedro Sousa Uva
1. Article V(1)(d) allows non-recognition of an arbitral award if: [ the arbitral procedure was not in accordance with the agreement of the parties, or, failing such
agreement, was not in accordance with the law of the country where the arbitration took place.
2. Article 19.1.
3. Although arbitral institutions do not usually regulate the procedure for the taking of evidence.
4. Articles 341 to 396 deal with document production, expert evidence, inspection evidence, and the testimony of third parties.
5. Barrocas, Manuel Pereira in A Prova no Processo Arbitral em Direito Portugus, page 10, available at http://arbitragem.pt/estudos/a-prova-no-processo-arbitralem-direito-portugues--manuel-pereira-barrocas.pdf
6. As Manuel Pereira Barrocas explains, this does not mean that arbitrators should ignore the typical procedural concepts, litispendence, exception, counterclaim, or
other solutions for taking of evidence provided for in the CPC (notably the request to anticipate the taking of evidence) - they should not. What arbitrators should
ignore in arbitration is the relevant regime set out in the CPC, which does not apply to arbitration (vide study identified in note 5, page 7.)
7. These principles are basically the ones previewed in the Model Law.
8. Under Portuguese Law, witnesses are always third parties as Portuguese law does not admit the testimony of the party itself, unless requested by the counterparty
(depoimento de parte).
9. Article 29 of the PLVA sets forth that State Courts have the power to order interim measures in pending arbitral proceedings or in those that have not yet
commenced. Arbitral tribunals can also do this, as expressly stated in Article 20.2d) of the PLVA
10. Produo antecipada de prova Article 520 of the CPC.
11. Vide articles 38.2 and 29.2 of the PLVA
73 YAR JULY 10, 2013
BRAZILIAN ASSOCIATION
OF ARBITRATION STUDENTS
By Associao Brasileira de Estudantes de Arbitragem
In the context of the consistent growing support by Brazilian
students to present and publish the result of their studies.
courts and the huge expansion of its use as a dispute settlement

mechanism, it is also natural the growth of the academic
From an international perspective, ABEArb has been
community dedicated to the study of arbitration. Such study
a continuing contributor of the newyorkconvention1958.
has found strong catalysts on the Willem C. Vis International
org website, jointly organized by UNCITRAL, Columbia Law
Commercial Arbitration Moot and recently on the Petrnio
School and Shearman & Sterling, submitting translations of
Muniz Brazilian Arbitration Moot.
decisions from the Brazilian Superior Court of Justice on the

recognition and enforcement of international arbitral awards.
It was precisely under this context that in August 2011,
Also, ABEArb has the honor to employ all efforts contributing to
the Brazilian Association of Students of Arbitration ABEArb
the YAR Young Arbitration Review editions, in a partnership
was created, in order to focus and meet the demands of the
that is already celebrating its second year.
growing number of Brazilian arbitration students.

ABEArbs projects are only possible through the hard
Among its many projects, ABEArb organizes events,
work of its directors, supporters and volunteering members,
coordinates collective works, such as listing Brazilian and international
whose main focus is to promote arbitration among law students
institutions, young associations, case law, among others, promotes
from all over Brazil and to provide opportunities to those
network among Brazilian students and offers opportunities for
students already engaged on its study.
74 YAR JULY 10, 2013
2013 Executive Board

PRESIDENT
Jorge Vargas Neto is an associate of Pinheiro Neto Advogados, part of the Litigation and Arbitration Group and
the Infrastructure and Construction Law Group. He holds a L.L.B from the Law School of the Pontifical Catholic
University and a Masters degree in Banking, Corporate, Finance, and Securities Law from INSPER. Jorge has
specialization in International Arbitration by the International Academy for Arbitration Law, being awarded the
Laureate of the Academy Prize:3rd Place (2012), and in Mergers & Acquisitions and Corporate Law by the Georgetown University
Law Center (2009). He is also ambassador of the International Academy for Arbitration Law in Brazil and member of the editorial
board of Group of Studies in Arbitration GEArb. Jorge is a former member of UFMGs study groups on international law and on
international trade law and former participant of the 18th Willem C. Vis International Commercial Arbitration Moot, 4th Annual
Foreign Direct Investment Moot and 2nd Petrnio Muniz Brazilian Arbitration Moot Competition.
VICE-PRESIDENT
Rodrigo Moreira received his law degree from the Pontifical Catholic University of Rio de Janeiro (PUC-Rio) in July
2010. He is a partner at Laudelino da Costa Mendes Neto Advocacia at the complex litigation and contracts areas. He
was one of the founders of the Research Group on International Arbitration and International Commercial Contracts
at PUC-Rio, which represents the University on the Willem C. Vis International Commercial Arbitration Moot. He participated as
a mootie on the 16th and 17th editions of the Vis Moot and as assistant-coach on the 18th and 19th editions. He was part of the
local committee for the organization of the 3rd edition of the Petrnio Muniz Brazilian Arbitration Moot Competition and is the
assistant coach of the Fundao Getlio Vargas team for the 4th edition. He is also in the last semester of the LL.M on Corporate
at the Fundao Getlio Vargas.
SECRETARY
Aline Henriques Dias received her law degree from Mackenzie Presbiterian Univesity, So Paulo, Brazil and is
specialized in Arbitration by the Law School of Fundao Getlio Vargas DIREITO GV. She is an associate in the
litigation team at Mattos Muriel Kestener Advogados and a founding member of the Arbitration Study Group of the
Mackenzie Presbiterian Univesity GEAMACK. As member of this Study Group, Aline participated as a speaker in the two firsts
editions of the Petrnio Muniz Brazilian Arbitration Moot Competition and, more recently, she also participated as coach in the
third edition of this same Brazilian competition and in the 19th Willem C. Vis International Commercial Arbitration Moot. Aline is
member of Young International Arbitration Group of the London Court of International Arbitration.
TREASURER
Daniel M. C. Barbosa received his law degree from Universidade Federal de Minas Gerais (UFMG), Belo Horizonte,
Brazil. He interned in different law firms in Belo Horizonte, having mainly focused on contract law and arbitration,
and was also an intern at the Secretariat of the International Court of Arbitration of the International Chamber of
Commerce in Paris. During his studies, he was a member of UFMGs study groups on international law and on international trade
law and represented the university in the 15th and 16th Willem C. Vis International Commercial Arbitration Moot, in the 51st
Philip C. Jessup International Law Moot Court Competition, and in the 4th Annual Foreign Direct Investment Moot, in which he
received the Thomas Wlde Award for Best Oralist. Daniel is also one of the founders and organizers of the Petrnio Muniz Brazilian
Arbitration Moot Competition.
75 YAR JULY 10, 2013
ACADEMIC OFFICER
Agatha Brando de Oliveira is a last year law student at the Federal University of Espirito Santo (UFES). She is
specialized in International Law by the The Hague Academy of International Law, develops four Research Initiation
Scholarship Projects and is a researcher for UNESCO and the International Law Center (CEDIN). Agatha is also
assistant Director at Harvard National Model United Nations Latin America (HNMUN-LA 2013), coordinator of the
Academic Group in Private International Law and Arbitrations Extension Research group at UFES Center of specialized studies in
International Arbitration and Civil Procedure NEAPI. She is member at New York State Bar Association NYSBA, International
Section, and is part of the Organization Committee created for the Petrnio Muniz Brazilian Arbitration Moot Competition.
EVENTS OFFICER
Ana Carolina DallAgnol holds a degree in International Relations from UniCuritiba and is a law student at the
same institution (graduation expected on December 2013). She was an intern at the law firm Lee Taube Gabardo
Sociedade de Advogados for two and a half years. During her study at UniCuritiba, she was a member of the Study
Group on Arbitration and International Contracts for five years and has participated as a speaker (16th and 17th editions) and as
a coach (18th and 19th editions) on the Willem C. Vis International Commercial Arbitration Moot. Ana has also participated as a
speaker on the IV and V editions of the Foreign Direct Investment Moot.
INTERNATIONAL OFFICER
Daniel Tavela Luis has law degree by the So Paulo Law School of Fundacao Getlio Vargas DIREITO GV. He holds
a Masters degree in International Law by the University of So Paulo. Daniel is partner at Manuel Lus Advogados
Associados, President of the Direito GV Alumni Association and specialist in International Arbitration by the International
Academy for Arbitration Law. Daniel is member of the Brazilian Arbitration Committee and ICC Young Arbitrators Forum and of the
Young-OGEMID. He is coach of the So Paulo Law School of Fundaco Getlio Vargas DIREITO GV for the Willem C. Vis International
Commercial Arbitration Moot and Petrnio Muniz Brazilian Arbitration Moot Competition. He is also a founding member and coordinator
of the Study Group in Arbitration, Investments and International Contracts of the DIREITO GV GEArbICIDGV.
OFFICER
Bernard Potsch Moura is a bachelor and a LLM (Master of Law) candidate at University of the State of Rio
de Janeiros (UERJ) Law School. He is currently an associate at Batista Martins Advogados, law firm specialized
in arbitration. Bernard is member of the Brazilian Arbitration Committee and also is coach of the University of
the State of Rio de Janeiros team for the Willem C. Vis International Commercial Arbitration Moot and for the Petrnio Muniz
Brazilian Arbitration Moot Competition.
OFFICER
Isabelle Ferrarini Bueno is currently in the last year of law school at Federal University of Rio Grande do Sul
(UFRGS), working as an intern in the corporate team at Souto, Correa, Cesa, Lummertz & Amaral. She is a member
of the academic group Arbitration and International Contracts coordinated by Professor Vera Fradera, at Federal
University of Rio Grande do Sul. Isabelle is member of the teams that represented the Federal University of Rio Grande do Sul in
the 18th, 19th and 20th editions of Willem C. Vis International Commercial Arbitration Moot, and member of the current team
representing Souto, Correa, Cesa, Lummertz & Amaral at the Petrnio Muniz Brazilian Arbitration Moot Competition.
OFFICER
Laura Gouva de Frana Pereira is currently in the last year of law school at University of Sao Paulo (USP). She
works as an intern in the arbitration team at L. O. Baptista Schmidt, Valois, Miranda, Ferreira & Agel and is
specialized in International Arbitration by the International Academy for Arbitration Law. Laura completed a oneyear academic exchange at Institut dtudes Politiques de Paris (Sciences Po Paris), being placed on the Deans List of International
Students (Mention Summa Cum Laude). She is coordinator of the Academic Group Arbitration and International Contracts
(ABCINT) of USPs Faculty of Law and is also member of the team that represented the University of Sao Paulo in the 20th edition
of the Willem C. Vis International Commercial Arbitration Moot, and coach in the 21st edition of the same competition.
76 YAR JULY 10, 2013
[BIOGRAPHIES]
International Dispute Resolution at Queen Mary
University of London (2008/2009), where he
focused on International Commercial Arbitration,
International Trade and Investment Dispute
Settlement and Alternative Dispute Resolution.
PEDRO
SOUSA UVA
Pedro Sousa Uva (born 1979) is an Associate Lawyer
at Miranda Correia Amendoeira & Associados.
His practice focuses on litigation and arbitration.
He is a member of the Portuguese Bar Association,

a member of the Alumni & Friends of the School
of International Arbitration (AFSIA), University
of London. He is a co-founder of AFSIA Portugal
(created in June, 30 2010).
Between 2009 and 2010, he participated in the

International Arbitration Groups Intern Program, in
London, at Wilmer Cutler Pickering Hale and Dorr LLP.
Pedro has published several articles notably A

comparative reflection on challenge of Arbitral
awards through the lens of the arbitrators duty of
impartiality and independence, published in The
American Review of International Arbitration, Volume
20, No. 4, in January 2011 (an updated version of
the Authors LLM Dissertation); Co-Author of the
Portuguese Chapter of the International Comparative
Legal Guide to International Arbitration 2010,
2011, 2012 and 2013 - Global Legal Group (GLG)
and Settlement in International Arbitration: the
CEDR Rules, March 19 2010, Executive View,
Litigation and Dispute Resolution, Digital Guide
2010, http://www.executiveview.com.
Pedro is a former scholarship student of the Katolieke

Universiteit Leuven, Belgium, where he pursued
studies in International Arbitration (2001/2002).
He completed an LL.M in Comparative and
Pedro will Co-Chair the Sub40 Committee of the

Portuguese Association of Arbitration (APA) from
September, 1 2013 onwards. He is co-founder of
YAR - Young Arbitration Review.
Pedro is a Graduate of the Lisbon Law School of the

Portuguese Catholic University (2003). Pedro was
admitted at the Portuguese Bar in 2006.
Before joining the Firm in May, 2013, Pedro worked
for almost ten years as an Associate at Abreu
Advogados law firm, where he focused his practice
in the areas of litigation and arbitration.
International Commercial Arbitration, International

Commercial Litigation, Alternative Dispute
Resolution and International Trade and Investment
Dispute Settlement (subject grouping: Commercial
and Corporate Law).
GONALO
MALHEIRO
Gonalo Malheiro is Junior Partner at PBBR Law
Firm and co-head of its Litigation Arbitration
Department, currently acting as counsel in both
ad hoc and institutional arbitration proceedings
(domestic and international arbitration).
He is a graduate from the Catholic University
Law School of Lisbon. He has an LL.M from
Queen Mary - University of London, School of
Law, where he focused on the following subjects:
Gonalo is a member of the Portuguese Bar Association,

the Catholic University Alumni Association, the
Chartered Institute of Arbitrators and the Alumni
& Friends of the School of International Arbitration
(AFSIA), University of London.
He is a co-founder of AFSIA Portugal. Gonalo
was Chairman of the Young Member Group of the
Chartered Institute of Arbitrators.
Besides publishing in English and Portuguese on
different arbitration subjects, Gonalo is also CoFounder of YAR - Young Arbitration Review.
77 YAR JULY 10, 2013
JOS MIGUEL
JDICE
Jos Miguel Jdice is the Founding Partner and Head
of Arbitration (PLMJ, Lisbon), a Visiting Associate
Professor of Universidade Nova (Lisbon), international
arbitrator, member of ICC International Court of
Arbitration, of the ICSID Roster of Arbitrators,
Board of Directors of Club Espaol de Arbitraje and
Associao Portuguesa de Arbitragem.
He has more than 35 years of experience in litigation
and arbitration, covering almost all the fields of law
(Public and Private Law, International Contracts and
Investments, Corporate Law, Environment, Finance,
Real Estate, Construction, Health, Energy, Concession
contracts, Procurement, PPPs, Constitutional) .
As Counsel in Arbitration, Jos Miguel Jdice has
intervened in more than 50 ad hoc, UNCITRAL,
ICC, OHADA, ICSID and NAI, national
and international arbitrations, since 1979
(telecommunications, construction and zoning,
ROBERT
ROTHKOPF
Robert is a solicitor advocate in Herbert
Smith Freehills New York office specialising in
international arbitration, with a focus on the
energy sector. Robert was previously based in
the international arbitration team in Moscow
and in London where he was seconded twice
to BPs dispute resolution team. Whilst at BP,
Robert advised a number of global BP entities
on contentious matters in multiple jurisdictions
and forums. Roberts recent experience includes
advising on an ICC arbitration relating to an
off-shore West African field, and an ICDR
arbitration relating to physical coal trading.
finance and banking, international contracts,

agency and distributorship, investment disputes, oil,
hotel and tourism, labor, shareholders agreements
and corporate, industrial law, M&A).
Jos Miguel Jdice has sat as Arbitrator in more
than 40 ad hoc/UNCITRAL and ICC, national
and international arbitrations, as co-arbitrator,
sole-arbitrator (1) and Chairman (24), submitted
to Portuguese, Brazilian, Angolan, Spanish, BITs
and International Law (telecommunications,
construction, banking and finance, international
contracts, agency and distributorship, mining,
tourism, ppps, investment disputes, pharmaceutical,
oil, hotel management, BIT disputes, etc). He is
currently Chairman of one UNCITRAL investment
treaty arbitration (Rurelec vs Bolivia).
As member of the Board of Directors of Portuguese
Arbitration Association, he has been one of the
authors of the new Portuguese Arbitration Law.
Amongst his many publications, Jos Miguel Jdice
was author of Portuguese Arbitration Law A
commentary (2012). As Professor, he teaches now
Arbitration and Dispute Resolution, Energy and
Politics and Business Law
DUARTE
GORJO
HENRIQUES
Duarte G. Henriques is a Lawyer, Arbitrator and
Legal consultant, with experience on Litigation
and Arbitration, IT Law, IP Law, Copyright Law,
Corporate Law, Commercial Law and Civil Law.
Graduated at Faculty of Law of University of
Lisbon (1988).
Duarte G. Henriques is Arbitrator at Arbitrare
Arbitration Centre, Lisbon, Portugal (www.
arbitrare.pt).
Duarte G. Henriques is a Member of Portuguese
Bar Association since 1990; Member of APA
Portuguese Arbitration Association; Member of
the London Court of International Association
European Users Council; Member of the
International Bar Association Arbitration
Committee.
78 YAR JULY 10, 2013
HENRY
CLARKE
Henry Clarke is an Associate at Clyde and Co,
Dubai and Riyadh. Henry is a Fellow of the
Chartered Institute of Arbitrators and an English
solicitor advocate (civil and criminal)
Henry Clarke concluded a LLM with
Distinction (commercial, construction and
investment law and arbitration), at Queen
Mary University of London
Henry Clarke is member of the Young
International Arbitration Group; ICC Young
Arbitrator Forum; Law Society; Solicitors
Association of Higher Court Advocates.
Before, Henry Clarke worked for the British
Army February 2005 - September 2011 as legal
officer and Major; worked at Clarke Willmott, as
corporate solicitor ( April 2004 January 2005)
and was a Trainee solicitor at Clifford Chance
(February 2002- March 2004).
As notable achievements, it should be
mentioned the following activities:
In a team researching, reviewing and editing
next edition of International Comparative
and Commercial Arbitration (Krll, Lew and
Mistelis).
Advising on grounds and conduct of a claim in
an arbitration regarding a security contract for a
higher education institute in Saudi Arabia
Advising on enforcement of judgments and
arbitral awards of various nationalities within
Saudi Arabia
Advising on the grounds for a sub-contractors
claims for payment on a Saudi international
airport construction project
An audit of the compliance of Tunisias
national arbitration law with the revised
UNCITRAL Model Law on International
Arbitration and contemporary best practice in
international commercial arbitration
Contributing to the drafting of the memorial,
witness statements and collating of evidential
submissions for an ICC arbitration with a
German seat relating to an electricity grid
project in the Horn of Africa under World Bank
funded procurement and project terms.
CHIARA
VALENTINA
CATTI
Chiara Catti is an Italian attorney with
experience in Dispute Resolution and
Commercial Law Practice. She has worked
in the commercial litigation department of
Baker & McKenzie. In 2010 she joined the
pharmaceutical company of J&J as legal counsel,
supporting the sale and regulatory department
in drafting commercial contracts and in
complying with the Holding procedures. Before
she was Business Development Coordinator for
Clearly Gottlieb Steen & Hamilton.
She is a mediator according to the Italian
Legislative Decree and with the New York
Peace Institute, serving at the Brooklyn and
Manhattan Civil Courts.
Chiara graduated with honors from the
University of Milan in 2001 and she was an
Erasmus visiting student at Universit Ren
Descartes, Paris V. In 2012 she received an LL.M.
in Dispute Resolution from Cardozo School of
Law, New York. Ms Catti is fluent in English and
French. She has a fair knowledge of Spanish.
LUIS
FERNANDO
GUERRERO
Luis Guerrero is Master of Laws and Phd Candidate
at Universidade de So Paulo and a Mediation
Specialist at Northwestern University.
Luis is a Visiting Scholar at Columbia Law School
of Columbia University. Mr. Guerrero is a Member
of CBar, ICCs YAF, LCIAs YAG. He is also a
Pannelist of Painel II do Comit de Controvrsias
sobre Registro de Domnio do Centro de Arbitragem
e Mediao da Cmara de Comrcio Brasil-Canad
(CCRD-CAM/CCBC).
Currently, Luis is a Partner at Dinamarco, Rossi,
Beraldo e Bedaque Advocacia.
79 YAR JULY 10, 2013
institutions. To add up, he is a co-founder and

former Secretary of an arbitration institution,
CNICA and inducted as member of ICCA.
VEERARAGHAVAN
INBAVIJAYAN
V. Inbavijayan was educated at Dr.Ambedkar Govt.
Law College, University of Madras. After completing
his legal education, he took up litigation practice at
High Court of Madras (1997). His enthusiasm towards
Arbitration made him to pursue whole time arbitration
practice since 2001.
So far he has presided as sole arbitrator and
represented as counsel in over 250 domestic cases,
several Documentsonly small claims finance
arbitrations and 10 international arbitrations.
His areas of practice includes international
commercial arbitration, maritime arbitration,
international trade & contracts, intellectual property
rights, construction disputes, finance disputes,
securities arbitration, joint ventures, banking law,
documentary credits (L/Cs), ADR, sale of goods,
domain name disputes and investment disputes.
He has been accredited as an arbitrator in HKIAC,
CIETAC, RCAKL, CRCICA, ICADR, ICA, CIDRA
and various other regional and national arbitration
Recently he has been approved as Tutor of

Chartered Institute of Arbitrators, UK and has been
listed in the 2008 edition of International Whos
Who of Commercial Arbitrators. To add up
Chambers Asia Directory 2010 refers as
Veeraraghavan Inbavijayan is active in commercial
arbitration and described as excellent he
handles matters in a highly professional manner
and can achieve fast results. and 2011 refers as
Veeraraghavan Inbavijayan is a respected figure,
who focuses on handling international arbitrations
on a wide range of disputes, including those relating
to distributorship agreement, construction and
satellite right Chambers Asia Directory 2012 refers
as Veeraraghavan Inbavijayan earns accolades
for his noteworthy knowledge in arbitration.
He undertakes both domestic and international
arbitration, particularly in international trade and
commercial disputes.
In addition he is promoting the concept of ADR by
way of writing articles and books, providing training
courses and gives lecture on Arbitration and
ADR in law schools, Universities and conferences
worldwide.
KIRTHI
JAYAKUMAR
Kirthi is a legal researcher and lawyer. A Peace and
Conflict studies enthusiast, Kirthi is a volunteer with
the UN.
She is presently a Commissioning Editor with e-IR,
an online International Relations portal, the Logistics
and Constituents Head at The Channel Initiative,
working for post-conflict reconstruction in the DR
Congo, specifically targeting women. Kirthi works
with DeltaWomen, as a writer and with CAAGLOP,
as a Managing Editor and writer on African Policy.
Recently, Kirthi was part of the UNICEF-UN Women
Global Thematic Consultation on Addressing
Inequalities through her paper titled The Rule
of Law to combat Sexual Violence in a Conflict
Environment. Kirthi dabbles with Intelligence

and Security Analysis with Open Briefing, as an
Associate Researcher, at the Asia-Pacific Desk,
and runs an International Law Consultancy and
Academic Journal called A38.
Kirthi has written ad-hoc features for forums that
include TransConflict, WorldPulse and PeaceXPeace
and is a member of the TrustLaw Network.
Kirthi is a legal researcher and lawyer. Her
interest and experience over all lie in Peace and
Conflict, Public International Law, Gender issues,
International Humanitarian Law, and in terms of a
regional focus, in Afghanistan, the Middle East, DR
Congo and South-Asia.
80 YAR JULY 10, 2013
THOMAS
GAULTIER
PORFRIO
MOREIRA
Thomas is a New York qualified attorney and

counselor-at-law, currently Of Counsel at AAA
Advogados in Lisbon. He is a graduate from the
University of Paris X Nanterre Law School.
Porfrio Moreira is a Senior Associate at Cardigos

Law Firm, working in the Corporate Group.
His practice focuses on corporate, EU law, and
employment related matters.
He has an LL.M in Alternative Dispute

Resolution of the University of Texas in Austin
(2008/2009), during which he focused on
International Arbitration and Litigation and
Alternative Dispute Resolution, and Mediation,
as well as became a certified mediator, and where
he participated in the Graduate Portfolio Program
in Alternative Dispute Resolution, presenting his
research on the theme of Cyber- Arbitration.
Porfirio has wide experience in business

reorganization, involving private and state-owned
companies as well as in litigation and arbitration,
frequently in cross-border disputes.
Thomas co-Authored of the Portuguese Chapter

of EU Mediation Law and Practice (published
by Oxford University Press in October 2012),
the Portuguese Chapter of the International
Comparative Legal Guide to International
Arbitration 2010 / Portugal Global Legal Group
(GLG) (Published in August 2010) and has
won the Consulegis Thomas Marx award for
2010 with his paper in the topic of Cross-Border
Commercial Mediation.
He is the Vice-President and co-founder of the
ICFML Instituto de Certificao e formao de
Mediadores Lusfonos, a non-profit organization
aimed at training and certifying Portuguesespeaking mediators. Thomas teaches mediation
and negotiation with the ICFML.
Porfirio studied at College of Europe, LL.M in

EU Law, 2012 and at Universit Paris PanthonSorbonne, Postgraduate Studies in EU Law, 2007.
ANDR
PEREIRA
DA FONSECA
Andr Pereira da Fonseca is a Visiting Attorney
at the New York office of Herbert Smith Freehills
and an Associate of Abreu Advogados in Lisbon.
He has also worked in Abreu Advogados local
offices / partnerships in Angola and Mozambique.
He is a graduate from the Faculty of Law of
the University of Lisbon and has an LL.M
in Comparative and International Dispute
Resolution from Queen Mary - University of
London, School of Law.
Andr is a member of the Portuguese Bar
Association and a member of the Alumni
& Friends of the School of International
Arbitration, University of London.
Andres practice focuses on national and
international dispute resolution, notably
representing clients in complex cross border
litigations and arbitrations.
81 YAR JULY 10, 2013
STEVEN
P. FINIZIO
Steven P. Finizio is a partner at Wilmer Cutler
Pickering Hale and Dorr, LLP. He is a member of the
International Arbitration and Securities Litigation
and Enforcement Practice Groups. Prior to joining
the London office in 2000, Mr. Finizio practiced in
the firms Washington, DC office. He joined the firm
in 1993.
Finizios practice focuses on complex commercial and
regulatory disputes, and concentrates primarily on
international arbitration. Mr. Finizio also serves as an
arbitrator in international commercial arbitrations.
Academy of Arbitration and for AILAs annual

International Treaty Law and Arbitration Programme.
He speaks regularly on international arbitration
at conferences and seminars, including at events
held by the ICC, ICSID, AAA, German Arbitration
Institute (DIS), Swedish Arbitration Association,
Swiss Arbitration Association (ASA), LCIA India,
and the British Institute of International and
Comparative Law (BIICL).
Finizio has advised clients on matters arising under

the rules of all the major international arbitration
institutions, and in disputes sited in both common
law and civil law jurisdictions and governed by the
laws of jurisdictions in Europe, Asia and the US. Mr.
Finizio also frequently advises on the drafting of dispute
resolution clauses for commercial agreements. Mr.
Finizio is recognized as a leading practitioner in guides
such as Chambers, Legal 500, Global Arbitration
Reviews Whos Who in International Arbitration and
Euromoneys Guide to the Worlds Leading Experts in
Commercial Arbitration.
Finizio is co-author of A Practical Guide to

International Commercial Arbitration: Assessment,
Planning and Strategy (Sweet & Maxwell 2010;
new edition forthcoming) and also of International
Commercial Arbitration in The Law of
Transnational Business Transactions (West 2004)
and is a contributing editor to the International
Comparative Legal Guide to International
Arbitration (Global Legal Group). Topics of recent
articles include the taking of evidence, the Energy
Charter Treaty, arbitrator appointment, anti-suit
injunctions, arbitrator conflicts, provisional measures
in investor-state arbitration, a comparative law
discussion of the plain meaning rule of contract
interpretation, and expert determination clauses.
Finizio teaches International Commercial Arbitration

as an Adjunct Professor at Pepperdine University Law
School in London and is on the faculty at the Cologne
Finizio is a member of the California and District

of Columbia bars and a registered foreign lawyer,
Law Society of England and Wales.
JEREMY
BOCOCK
Jeremy Bocock participated in the International
Arbitration Groups Intern Program, in London, at
Wilmer Cutler Pickering Hale and Dorr LLP between
April and June 2013; Jeremy previously worked in Paris
for the ICC International Court of Arbitration between
January and March 2013 and for Freshfields Bruckhaus
Deringer from July 2011 to December 2012.
Jeremy attended the Paris Bar School between

2011 and 2013 and studied at the Institut des
Hautes Etudes Internationales (IHEI) Paris II
Panthon-Assas (International law, investment law
and arbitration, 2nd diploma, Cum laude) where
he prepared the Thesis: Economic necessity in the
Argentinean ICSID awards, CMS v. LG&E
82 YAR JULY 10, 2013
SOFIA
MARTINS
MIGUEL
OLIVEIRA
MARTINS
Sofia Martins joined Ura Menndez in 2008

when it joined forces with the Portuguese firm
Frasto da Silva & Associados, of which she was a
founding partner. Before that, she was an associate
at Frasto da Silva Mendes Martins & Associados,
which she joined in 2004 from Henrique Abecasis,
Andresen Guimares & Associados, where she
worked from 1996 to 2004. Sofia has also been a
legal adviser to the Ministry of Agriculture.
Miguel de Oliveira Martins is a Trainee Lawyer

at Ura Menndez Proena de Carvalho.
She mainly represents clients in civil and

commercial litigation and arbitration at all
levels of the Portuguese court system and
arbitral tribunals in Portugal and abroad.
She is also listed in the rosters of prestigious
arbitral institutions, participating regularly
in colloquiums, seminars and conferences
onarbitration matters, frequently as a speaker.
He was a DRPA Certified Mediator at the

Superior Court of California (2007-2008), a
Member and Contributor to the American Bar
Association (2007-2008), a Legal Consultant at
OECD (2005-2006) and a Junior Deputy to the
European Parliament (1999).
Sofia also advises clients on regulatory and

supervisory aspects of insurance law, as well as in
insurance related disputes. Sofia assists clients in
the negotiation of insurance plans and policies,
insurance distribution and reinsurance agreements.
Miguel is a graduate at the Portuguese Catholic

University, School of Law, in Lisbon (2005).
Before joining the firm, Miguel was a Trainee
Lawyer at NGSL & Associados, Attorneys at
Law (2010-2012).
Miguel also completed an LL.M. - Master of

Laws in International Comparative Law at
the University of San Diego, School of Law
(California, USA) and a post-graduation
in International Law at the University of
Montpellier, School of Law, France (2005)
83 YAR JULY 10, 2013
YAR

The First Under 40 Portuguese International Arbitration Review
2011.
2011.YAR
YAR--Young
YoungArbitration
ArbitrationReview
ReviewAll
Allrights
rightsreserved.
reserved.

YAR - Young Arbitration Review - Edition 10

Uploaded by

Document Information

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

YAR - Young Arbitration Review - Edition 10

Uploaded by

Copyright:

Available Formats

2011. YAR - Young Arbitration Review All rights reserved.

1 YAR JULY 10, 2013

YOUNG ARBITRATION REVIEW

2011. YAR - Young Arbitration Review All rights reserved.

2 YAR JULY 10, 2013

YOUNG ARBITRATION REVIEW

2011. YAR - Young Arbitration Review All rights reserved.

3 YAR JULY 10, 2013

PREFACE - SOME LIKE IT HOT

2011. YAR - Young Arbitration Review All rights reserved.

4 YAR JULY 10, 2013

REPORT ON ICC YAF & YAR EVENT IN LISBON MAY 16 2013

2011. YAR - Young Arbitration Review All rights reserved.

5 YAR JULY 10, 2013

SOME LIKE IT HOT...

Arbitral Tribunals are different animals as compared with

A Judge is a professional that begins his/her career very

Judicial Courts. This does not intend to mean that Tribunals

young, quite often without any experience of different ways of

are more qualified technically, specialized, efficient, fact specific,

practicing law, insulated from lawyers, and they dont want to

pragmatic, open minded and business oriented, let alone less

face appeal court decisions that would be avoided if they accepted

prone to formal decision that dont bring peace to the parties

all the lawyers behavior albeit time consuming, irrelevant or

confrontational. They are normally prepared to accept waste of

of judges, their independence and impartiality, the honesty, of

the very large majority, create at least in Portugal a high pattern

this is lawyers way and when made in a sophisticated mood

that arbitrators should use for inspiration.

even brings good moments to enjoy and remember, as if it was

The point here is clearly another and is actually related

fixed salary and see no advantage to an entrepreneurial approach

to counsel behavior in front of Judges or Arbitrators. As a rule

to decisions and are proud of it. When faced with an imbalance

of thumb, if counsel thinks that Judges and Arbitrators (at least

of quality and preparation between each side of the bench they

in the international arena) are the same species of professionals

instinctively protect the weaker party and tend to disregard good

with similar or equivalent reactions, probably they are missing

advocacy as a litmus test for each partys case.

the point and making mistakes that might jeopardize or

Arbitrators have diversified past experiences, quite often

2011. YAR - Young Arbitration Review All rights reserved.

6 YAR JULY 10, 2013

work or have worked as advocates, are business oriented,

When these lawyers come to the arbitration arena, they

are horrified with waste of time, have an agenda full of

tend to think of arbitrators the same that they use to think

commitments, are neither paid by fixed salary (as judges) nor

of judges, forgetting all the differences mentioned above, let

by the hour (as lawyers). They have a vested interest in being

setting aside is almost impossible unless due process has not

been respected. And quite often these lawyers begin making

the usual mistakes, jeopardizing the case, creating bad will,

quite often with an ego big enough to be unprepared to accept

confusing the arbitrators about strong points they could have

confrontation, without sound reasons, with younger lawyers.

evidenced for the case by mixing them with irrelevant ones,

They know by heart the usual counsels tricks, are

being just tough, professional and focused, and not histrionic,

professionals will be very well prepared and dont consider his/

been crazy enough not to appoint qualified and experimented

look to lawyers as gladiators or mercenaries (well) paid to fight