KluwerArbitration
Document information
Publication
Journal of International
Arbitration
Bibliographic reference
Hong-Lin Yu and Motassem
Nasir, 'Can Online
Arbitration Exist Within the
Traditional Arbitration
Framework?', Journal of
International Arbitration,
(© Kluwer Law
International; Kluwer Law
International 2003, Volume
20 Issue 5) pp. 455 - 473
P 456
© 2020 Kluwer Law International, a Wolters Kluwer Company. All rights reserved.
Can Online Arbitration Exist Within the Traditional
Arbitration Framework?
Hong-Lin Yu; Motassem Nasir
(*) (**)
I Introduction
Online arbitration is a new form of ADR, and there have been various problems in trying
to apply traditional principles of international commercial arbitration to this new form of
arbitration. Rapid development and the spread of telecommunications utilization has
prompted research into the subject of e-commerce. The current article focuses on issues
of online arbitration, including whether traditional arbitration principles can provide
satisfactory answers to this electronic dispute resolution method and the potential
obstacles facing users of online arbitration.
Suppose a buyer and a seller are involved in a dispute over whether machines ordered
online are defective. The dispute is submitted to online arbitration in accordance with
the terms of an e-mailed agreement. The parties facilitate their online arbitration
through an institution in New York. The parties themselves are residents of Japan and
Turkey and the three arbitrators appointed are French, Canadian, and Hungarian
nationals. The meetings and hearings are conducted by e-mail and video-conferencing.
The arbitrators reach their final decision after several e-mail exchanges and the
presiding Turkish arbitrator issues the award by e-mail to both parties from his holiday
cottage in Cambridge, England. In this scenario, not only did the Internet enable
communication among many different people in many different places, the arbitrators
could also be chosen from any place in the world. This scenario raises a host of difficult
questions: given that communications between the buyer and seller were wholly
electronic, how does one determine if there is a valid arbitration agreement; where is the
place of arbitration; what are the applicable rules of procedural and substantive law; in
which jurisdiction was the award made; and, finally, does online arbitration fit at all into
the present framework of international commercial arbitration?
Compared with the traditional, territory-based framework for adjudicating disputes, the
virtual world of cyberspace has its own traditions, citizens, and customs. (1) There have
been many debates between those who want to organize this virtual world by drafting a
separate set of laws, and others who believe that there is no need for new or special rules
to be applied to online disputes. (2) However, in practice, traditional dispute
resolution methods do not work effectively in the virtual world. For instance, traditional
methods cannot guarantee individual rights (3) in every case, because the citizens of
cyberspace will often be nationals of different states and there are no guaranteed
individual rights for citizens of cyberspace. (4)
The special nature of cyberspace has generated the need for new dispute resolution
methods analogous to methods available in the “real world” but adapted to this unique
realm. Consequently, online dispute resolution (ODR) was developed. The term ODR has
been used to include the use of the Internet and other web and computer-based
technologies to facilitate alternative dispute resolution. For instance, the Internet can be
used to facilitate the collection transmission, and storage of information pertaining to
the dispute. (5) ODR involves dispute resolution where the parties may never meet in
person but may interact solely online. (6)
[ODR methods] make it possible for anyone to transmit significant quantities
of information to anyone else over virtually any distance instantaneously. They
make it possible for disputants to communicate interactively without being
present at the same place. They make it possible for participants to
communicate asynchronously, without being connected to the system at the
same time. They facilitate the storage, retrieval, review, and reuse of existing
information. (7)
Among the different methods of dispute resolution suggested in the virtual world,
arbitration is shared between both ODR and more traditional alternative dispute
resolution (ADR) methods. The purpose of this article is to discuss whether online
arbitration is a realistic method of ADR in the virtual world and whether, in the end, it can
be regarded as arbitration at all. The article begins with a general picture of online
arbitration. This will be followed by a detailed discussion of the validity of online
arbitration agreements; the requirements that they be “signed” and “in writing” will be
closely examined with a special emphasis on the definitions of these terms given by both
international and national communities. The third section examines how one should
determine the “seat of arbitration” in a borderless online arbitration. The fourth section
contains a discussion of the choice of procedural and substantive law. In the last part of
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 the article the authors will tackle the issue of the location of the award in online
arbitration in order to accommodate ODR into the existing territory-based arbitration
regime.
P 457

II General Principles of Online Arbitration

Online arbitration can arise from an arbitration agreement made either by traditional
methods or electronically. (8) Arbitration procedures may be conducted and conferences
held between parties and arbitrators online by using modern communication
technologies, and, in some more advanced systems, the hearing of witnesses, collecting
evidence, and issuing the arbitral awards may also be completed by using electronic
methods. (9)
Online arbitration may be initiated by the claimant by completing an online submission
form from an arbitration institution which includes: payment information, name and
address of the initiating party, and a brief description of the dispute. (10) The online
arbitration institution will send a questionnaire to the claimant who will fill it in and
return it by any electronic methods along with any available evidence. (11) After receiving
the questionnaire, the arbitration institution will send a letter to the respondent to
obtain his consent to the terms and conditions of the online arbitration. Once both
parties have agreed to resolve their dispute online, both will have an opportunity to
submit any relevant arguments and to state their case. In most online arbitrations a sole
arbitrator is appointed. (12) The award is normally expected to be issued five days after
the close of hearings and submission of all evidence. In general, disputes should be
resolved within a maximum period of ten to thirty days. (13)
The invention of ODR raises many issues. For example, should ODR and territorial ADR be
treated identically with regard to the requirement that the arbitration agreement be in
writing; the choice of arbitrator(s); the conduct of the proceedings, choice of laws; and
recognition and enforcement of the award? One has to ask whether online arbitration
constitutes an improvement or a replacement of traditional arbitration, and furthermore,
whether online arbitration should be regarded as arbitration at all.
Some scholars are of the opinion that online arbitration is indeed an improvement over
traditional arbitration methods, (14) as the “traditional method should not simply be
translated into the online environment.” (15) They argue that the development of
communication technology has been followed by an improvement in every aspect of the
P 458 arbitration procedure, such as correspondence via e-mail instead of via fax or post.
(16) According to others, online arbitration cannot retain its validity without traditional
requirements, such as tangible writing and a physical meeting between parties and
arbitrators. (17) At this early stage, online arbitration exists as a collection of hybrid
terms and rules of dispute resolution. It might have developed from traditional methods,
but it has undoubtedly generated a new set of rules that give it some independence. (18)
As a result, it becomes necessary to reconcile the new features of this product to the
existing arbitration regime.

III The Online Arbitration Agreement

The term “online arbitration agreement” can mean two things. One is that the parties
agree to have their disputes settled by means of traditional arbitration but the
arbitration agreement is concluded by means of electronic transmission. The other
possible interpretation is that the parties agree to use arbitration to resolve their
differences via the medium of new technology and such an agreement can be made
either in a tangible form or via electronic transmission. In this section, we will examine
whether an arbitration agreement made by means of electronic transmission satisfies the
requirements under the current arbitration framework that a valid agreement must be “in
writing” and “signed.”
It is a long-established rule in both national and international law that a valid arbitration
agreement is an essential requirement in order to initiate arbitration. A valid arbitration
agreement must be in writing and signed. Formalities such as writing and signature are
based on the need for some physical evidence or authentication from the person who has
given up his right to litigate in national courts. Written evidence is regarded as essential
in order to ascertain such an intention. This principle can be seen in Article II of the New
York Convention (19) which stipulates that “[e]ach Contracting State shall recognize an
agreement in writing under which the parties undertake to submit to arbitration all or
any differences which have arisen or which may arise between them in respect of a
defined legal relationship”. This is echoed in Article II(2): “The term ‘agreement in writing’
shall include an arbitral clause in a contract or an arbitration agreement, signed by the
parties or contained in an exchange of letters or telegrams”. Similar provisions can also
be observed in the UNCITRAL Model Law on International Commercial Arbitration (“the
Model Law on Arbitration”). (20)
P 459
The main issue arising from an arbitration agreement concluded by means of electronic
transmission is whether the electronic transmission can be interpreted as “in writing” and

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 how to satisfy the requirement of signature. Modern arbitration laws are flexible in
defining “in writing”; they recognize any form of arbitration agreement, provided that it
refers to a written form which itself contains an agreement to arbitrate. This definition is
used in the UNCITRAL Model Law on Arbitration in particular, which includes any method
of communication that can serve as a record of the agreement. As Article 7(2) provides,
“The arbitration agreement shall be in writing. An agreement is in writing if it is contained
in a document signed by the parties or in an exchange of letters, telex, telegrams or other
means of telecommunication which provides a record of the agreement.”
The use of traditional paper documents in international trade has been sharply
criticized. “Not only do paper documentation and procedures represent as much as 10
per cent of goods value, they are slow, insecure, complicated and growing.” (21) No one is
in a position to ignore the fast development of cybertrade, which has generated a large
number of electronic contracts for the purpose of international trade, such as e-bills of
lading and electronic arbitration agreements. Consequently, over the last decade both
international documents and national laws have started to address this development.
On the international level, the UNCITRAL Model Law on E-Commerce (“Model Law on E-
Commerce”) (22) facilitates e-commerce by providing greater certainty to online
contracts and modernizing the concepts of writing and signatures. It uses the new
concept of “data message”, which includes e-mail, electronic data interchange (EDI) and
telex, to fulfil the requirement that the arbitration agreement must be “in writing”. Article
6(1) of the Model Law on E-Commerce provides a new definition of “in writing” by stating
that “[w]here the law required information to be in writing, that requirement is met by a
data message if the information contained therein is accessible so as to be usable for
subsequent reference”. According to Article 11:
In the context of contract formation, unless otherwise agreed by the parties,
an offer and the acceptance of an offer may be expressed by means of data
messages. Where a data message is used in the formation of a contract, that
contract shall not be denied validity or enforceability on the sole ground that
a data message was used for that purpose.
Similar developments can be seen in Article 9(1) of the Electronic Commerce Directive
promulgated by the European Parliament, (23) which requires Member States to remove
restrictions on the use of electronic media to enter into contracts:
Member States shall ensure that their legal system allows contracts to be
concluded by electronic means. Member States shall in particular ensure that
P 460 the legal requirements applicable to the contractual process neither create
obstacles for the use of electronic contracts nor result in such contracts being
deprived of legal effectiveness and validity on account of their having been
made by electronic means.
As far as England is concerned, this movement started even before the introduction of the
Electronic Communications Act 2000. (24) For instance, the definition of “writing”
provided in section 178 of the Copyright, Designs and Patents Act 1988 (25) includes
digital documents in “any form of notation or code, whether by hand or otherwise and
regardless of the method by which, or medium in or on which, it is recorded”. Also,
computer databases are regarded as valid documents as long as they contain
information capable of being retrieved and converted into readable form. (26)
Recognizing the significance of signatures in contracts, the international trade
community has started to address issues arising from e-mails and web signatures. A
digital signature, which is secured to ensure that the electronic letter or statement
cannot be sent by another person or by mistake, is used widely in e-commerce. Article
7(1) of the UNCITRAL Model Law on E-Commerce provides:
Where the law requires a signature of a person, that requirement is met in
relation to a data message if:
(a) a method is used to identify that person and to indicate that person's
approval of the information contained in the data message; and
(b) that method is as reliable as was appropriate for the purpose for which
the data message was generated or communicated, in the light of all the
circumstances, including any relevant agreement.
In Europe, the Directive on Electronic Signatures (27) has also sought to resolve the issue
of signature in e-commerce. It facilitates the use of electronic signatures and contributes
to their legal recognition by establishing a legal framework for electronic signatures and
certain certification services. (28) According to the Directive, the term “electronic
signature” means data in electronic form which is attached to or logically associated with
other electronic data and which serves as a method of authentication. (29) The Directive
provides that EU Member States shall ensure that an electronic signature is not denied
legal effectiveness and admissibility as evidence in legal proceedings solely on the
grounds that it is in electronic form, unless it is not based upon a qualified certificate
issued by an accredited certification-service-provider, has not been created by a secure
signature-creation device, (30) and has not been subject to certification or prior

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 authorization. (31)
Recognizing that the essential element of a signature is the fixation in some manner,
P 461 whether by writing with a pen or pencil or by otherwise impressing upon the document,
of one's name or signature so as to personally authenticate the document, long before
the introduction of the Directive, English courts held that a rubber stamp (32) and a faxed
copy of a signature fulfilled the signature requirement. (33) Judge Laddie even refused to
rule out the possibility of recognizing a digitised signature appended to a fax. (34) The
admissibility of electronic signatures and related certificates in legal proceedings can
also be observed in section 7(1) of the Electronic Communications Act 2000, according to
which an electronic signature, or its certification, is admissible evidence in respect of any
question regarding the authenticity or integrity of an electronic communication or data.
As a result of current efforts on both national and international levels, most online
contracts of sale or services are legally binding. It is therefore logical to recognize the
validity of arbitration clauses transmitted in electronic form and the parties’ right to
choose arbitration to resolve disputes must be respected. (35)
Whether or not an online arbitration agreement will be recognized or enforced under the
New York Convention depends on the attitude towards an electronic agreement within
the state that is party to the Convention. From the discussion above, it is clear that
countries are moving towards a digital society, especially England, and those European
countries whose laws recognize the existence of online arbitration agreements. Almost all
countries have legal rules that at least permit the use of computer records as evidence.
(36) The UNCITRAL Report on Legal Implications of Automatic Data Processing has
concluded that “the differences between countries regarding the use of computer
evidence is not a serious problem”. (37) The main problem is the evidentiary value of
electronic data transfer, which is being addressed at both the international and national
level. Examples of such efforts include the UNCITRAL Model Law on E-Commerce, the
European Directives on E-commerce and Electronic Signatures, the English Electronic
Communications Act 2000, as well as the Uniform Rules of Conduct for Interchange of Data
by Teletransmission (UNCID Rules) which require parties to ensure that “a complete log is
maintained of all trade data as they were sent and received”. (38)
P 462

IV Seat of Arbitration
Online arbitration presents difficult issues for the determination of the seat of
arbitration. Under the present framework, the arbitration award has a substantial link
with the jurisdiction in which it is made. This can be seen in Article I(1) of the New York
Convention which states; “This Convention shall apply to the recognition and enforcement
of arbitral awards made in the territory of a State other than the State where the
recognition and enforcement of such awards are sought, and arising out of differences
between persons, whether physical or legal”.
This territorial factor has been strictly followed by most practitioners and academics
ever since the enactment of the New York Convention. Scholars in favour of the territorial
link argue that without it there would be potential risks that arbitrators may abuse their
power and the most fundamental due process requirement may not be safeguarded, as
arbitral proceedings and awards will not be subject to any court intervention or review.
The basis of this argument is the denial of the existence of “international” commercial
arbitration. Dr. Mann, the most enthusiastic among this group of scholars, has argued that
every arbitration is national in character because the private international law serving as
the jurisprudence of arbitration is, in fact, a system of national law. (39) Therefore, any
international commercial arbitration should be subject to a specific system of national
law. As far as the specific national law is concerned, the law of the country of the seat of
arbitration is considered as the most suitable one to regulate the arbitration since it can
provide the most complete and effective control over the arbitral procedures:
The problem of international arbitration cannot be discussed except against
the background of a given lex arbitri; the legal systems of the world differ so
considerably that no general rule can, or is intended to, be put forward. It
follows that, in principle and always subject to such freedom of choice as it
may allow, the lex arbitri governs the validity and effect of the submission; the
constitution of the tribunal; the procedure; the law applicable by the
arbitrators; the making, publications, interpretation, annulment and revision
of the award. (40)
This attitude, which has been adopted by most jurisdictions around the world, appears to
be inconsistent with the essence of online arbitration, in which the definition of the seat
of arbitration is extremely blurred. Consider as an example the scenario suggested at the
beginning of this article. The place of arbitration is not the parties’ main concern in
online arbitration; because an Internet arbitration facility made it possible to
communicate between many different people in different places, (41) arbitrators could
be chosen from any place in the world, and, consequently, there is no need to have face-
to-face meetings. (42) In this case, the immediate question one has to ask is, where is the
P 463

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 P 463
seat of arbitration? To answer this question, one can either search within the
traditional territorial framework in order to justify the legality of online arbitration, or
contemplate the possible justification hidden in the delocalization theory, which is
discussed below.
As far as the territorial principle is concerned, one should examine the concept of
“juridical seat”. In general, the parties to an online arbitration (or to a traditional
arbitration) are free to choose the place of arbitration. Parties to an online arbitration
usually involuntarily choose the location of the online arbitration institution (if there is
one) as the place of arbitration.
Where the parties or institutions fail to specify the place of arbitration, one should be
able to decide this issue with the help of the arbitrators. Article 20(1) of the UNCITRAL
Model Law on Arbitration states that the parties “are free to agree on the place of
arbitration. Failing such agreement, the place of arbitration shall be determined by the
arbitral tribunal having regard to the circumstances of the case, including the
convenience of the parties”. Alternatively, one can look to the place where the arbitral
award is deemed to have been made. For instance, in accordance with section 54 of the
Netherlands Arbitration Act 1996, (43) if the place of arbitration has not been determined,
either by the parties or the arbitral tribunal, the place where the award is made, as
stated in the award, is deemed to be the place of arbitration.
On the other hand, instead of forcing online arbitration into the existing arbitration
framework, one should also try to explore the concept of delocalization to provide a
different perspective to resolve this issue. The delocalization theory detaches
international commercial arbitration from controls imposed by the law of the place of
arbitration (the lex fori). (44) Proponents of the delocalization theory maintain that
international commercial arbitration should not be subject to laws which vary from
country to country. In particular, national laws may not be suited to the fast development
and practice of international commercial arbitration. In order to eliminate compulsory
controls of the lex fori, delocalization proponents maintain that jurisdiction should be
exercised by the country where the recognition or enforcement of arbitral awards is
sought.
According to those in favor of delocalization, the development of international
commercial arbitration may be impeded because of restrictions imposed on arbitration
procedures by various national courts; not only must arbitrators be aware of more than
one national law, they also have to juggle various possibly contradictory restraints
imposed by different laws. (45) The best way to eliminate these potential obstacles, in
their opinion, is to free arbitration procedures from the control of national courts. Thus,
P 464 they argue, arbitration procedures should be delocalized and completely freed from
the mandatory rules and public policy of the place of arbitration. In accordance with this
theory, the arbitrators do not need to look over their shoulders at various national
mandatory rules and public policies imposed by the lex fori or to attempt to reconcile
the law of the place where the contract was made, the law of the place of performance, or
the law of the place of enforcement, and so on. Accordingly, the arbitrators are not only
permitted to disregard the lex fori, but may also apply any procedural law they regard as
appropriate.
One argument in favor of the delocalization of international arbitration stems from the
difference between arbitrators and judges sitting in national courts. According to
Professor Paulsson:
The international arbitrator is in a fundamentally different position. Whatever
one might think of the contractual source of an arbitral tribunal's authority as
a purely internal matter, it is difficult to consider the international arbitrator
as a manifestation of the power of a State. His mission, conferred by the
parties’ consent, is one of a private nature, and it would be a rather artificial
interpretation to deem his power to be derived, and very indirectly at that,
from a tolerance of the State of the place of arbitration. (46)
Nevertheless, to avoid misunderstanding, Paulsson points out that the purpose of this
theory is not to try to escape from a national court's control, but rather to promote the
acceptance of delocalized arbitral awards.
[T]o seek completely to avoid national jurisdictions would be misguided.
Indeed, the international arbitral system would ultimately break down if no
national jurisdiction could be called upon to recognize and enforce awards …
the delocalized award is not thought to be independent of any legal order.
Rather, the point is that a delocalized award may be accepted by the legal
order of an enforcement jurisdiction although it is independent from the legal
order of its country of origin. (47)
Furthermore, the criticism made by the International Chamber of Commerce (ICC)
regarding territorial principles may also provide justifications for the development of
online arbitration. First, the ICC stresses that, in practice, the place of arbitration is often
chosen by the arbitration institution, rather than the parties, especially in the case of the
ICC; therefore, compulsory application of a territorial link to the arbitration procedures

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 does not necessarily reflect the parties' wishes.
Nevertheless, delocalization appears to be problematic within the present framework
whose backbone is the territorial-based New York Convention, as the Convention gives
the court of the country where enforcement is sought the right to reject enforcement if the
award has not become binding under the law of the country in which the award was
made. (48)
P 465

V The Law Applicable to Arbitration Procedures

Online arbitration can be conducted in various ways. One possibility is to follow
traditional arbitration procedures. (49) Another possibility is to use the Internet as the
first stage of arbitration (e.g., for submitting disputes to arbitration, sending documents
via e-mail, etc.), but this still requires both the arbitral tribunal and the parties to follow
some traditional arbitration procedures (e.g., sending a written arbitration agreement to
the arbitrators or producing original documents). The third method is to run the
arbitration process from start to finish by electronic means online. This last option
includes an electronic agreement to arbitrate, digital signatures, online conferences,
hearings, and issuing the award online. (50)
The involvement of new technology may cause a few upsets (e.g., over issues of witness
testimony or the applicable procedural law) to the arbitration framework. It is well-
established that for the purposes of collecting evidence and holding hearings, subject to
the parties’ agreement, the arbitrators can decide when and where the proceedings are
to be held. (51) In general, there are two ways of taking testimony from witnesses: oral
hearings and written evidence. In some cases, arbitrators take written evidence in order
to shorten oral testimony. (52) However, difficulties may arise in some countries which
require face-to-face hearings. While both parties and arbitrators have to respect this
requirement in order to have an enforceable award, (53) the requirement appears to
clash with the idea of online arbitration, the goal of which is to shorten the arbitration
process by using modern interactive and instantaneous technologies such as electronic
hearings and conferences, and exchanging of documents by electronic methods. (54)
Although having face-to-face hearings is not always a condition for the enforceability of
arbitral awards, (55) online arbitration cannot completely ignore the requirements
imposed by the relevant laws of the “real” world.
Compared to oral hearings, written testimony appears to be easier to reconcile with
online arbitration. First of all, one can borrow the concept of “in writing” suggested in
both international and domestic law to construe a wider meaning to include electronic
means. The use of modern technology in online arbitration should be seen as an
improvement in communication.
However, in the case of applicable procedural law, the requirements of applying the
procedural law and observing the mandatory rules of the place of arbitration imposed by
P 466 the New York Convention appears to be more problematic. Taking the scenario
mentioned at the beginning of this article as an example, one has to ask what is the
procedural law of the online arbitration, and, moreover, which country's laws should the
arbitrators observe?
If the juridical seat of arbitration (i.e., the place of arbitration) is either specified in the
parties' agreement or by the arbitrators, the question will be less complicated. But if no
place of arbitration is decided in an online arbitration, then the issue of applicable
procedural law will arise during the arbitration proceedings and/or at the stage of
recognition or enforcement. Since most jurisdictions maintain a link between arbitration
and their national courts, arbitration is not generally allowed to float without attaching
itself to a national jurisdiction. (56)
The fundamental principle in this connection is that under our rules of private
international law, in the absence of any contractual provision to the contrary,
the procedural (or curial) law governing arbitrations is that of the forum of the
arbitration, whether this be England, Scotland or some foreign country, since
this is the system of law with which the agreement to arbitrate in the
particular forum will have its closest connections… Despite suggestions to the
contrary by some learned writers under other systems, our jurisprudence does
not recognize the concept of arbitral procedures floating in the transnational
firmament, unconnected with any municipal system of law. (57)
In other words, the place of arbitration must be ascertained in an online arbitration.
Considering this potential legal difficulty, as discussed above, some scholars urge the
application of “real world” concepts or rules of law to cyberspace issues, such as hearings
and written evidence, (58) whereas others are in favour of the idea that cyberspace as a
“separate space, should have its own independent set of rules, and authority apart from
the real world”. (59) Yet “real world” rules of law provide logical answers to the issues
arising in online arbitration. For instance, based on the principle of party autonomy, the
parties' choice of procedural law has to be respected. Further, their choice of an online
arbitration institution will oblige both parties and arbitrators to apply the institutional

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 rules to govern the arbitral procedure and their choice of juridical scat will guide
arbitrators to observe the potential impact of its laws. In cases where both parties and
arbitrators have failed to address these issues, the validity of an online arbitration will
certainly be called into question.

VI The Law Applicable to Substantive Issues

As is the case with the issue of applicable procedural law, arguments have been
advanced as to whether to create an independent set of substantive rules or simply to
apply real world rules of law to accommodate different types of disputes arising from
online contracts. At the moment, the group supporting the application of real world rules
P 467 of law prevails. This result is hardly surprising. A close examination of the difference
between real world disputes and online disputes reveals that the difference is simply the
framework: one is physical, the other is virtual. In the virtual environment, cyberspace
merchants deal with the physical value of goods or services (e.g., sale and purchase). The
nature of the transactions and disputes arising from online transactions is no different
from those occurring in the real world. Because there are ample sources of law governing
various disputes, it appears to be unnecessary to create a similar body of substantive law
to fill cyberspace with further complications.
Compared to the heated debates in the 1960s about whether to create separate legal
rules to accommodate the needs of merchants involved in international arbitration, one
thing sparing cyberspace from similar arguments is the wide acceptance of the new lex
mercatoria in both national courts and the international trade community. Accordingly,
applying rules or customs of online trade is not contrary to English public policy and will
not be discarded by English courts when seeking enforcement. This puts the new set of
rules and customs established in cyberspace (60) into the framework of the new lex
mercatoria. Indeed, the new lex mercatoria is suitable to be applied as the substantive
law in an online arbitration.
The term the “new lex mercatoria” was first used by Professor Schmitthoff. He suggested
that this body of principles could be found in: (a) international rules of commerce; (b)
applicable state law; and (c) trade usages in each branch of commerce. (61) Influenced by
this invocation, the new lex mercatoria has frequently been chosen to govern disputes,
particularly in Europe. (62) Analysis of arbitral awards made during the past twenty years
shows that a substantial number of them were made on the basis of the new lex
mercatoria. The choice of the new lex mercatoria can be made in two ways: either by the
parties’ express choice in the arbitration agreement, or by the arbitrators’ decision in the
absence of express choice from the parties.
With increasing international commercial activities conducted between parties from
different countries, the need for fair and suitable norms has increased. (63) Under these
circumstances, the new lex mercatoria has been invoked by some scholars. In their
opinion, in the absence of an express choice of law, traditional choice of law rules appear
to be inadequate to predict which law will govern international business disputes. As a
P 468 result, parties may be forced to have their contracts governed by a law they never
expected, they might be disadvantaged by their lack of language skills in an unexpected
jurisdiction, or have difficulty in discovering the relevant regulations of the applicable
laws. As one writer has commented, “[i]t is sometimes suggested, however, that this
search for the proper law is out of touch with the realities of international trade; and that
what is needed is not a particular national system of law, but a modern law merchant”.
(64)
Secondly, the proponents of the new lex mercatoria point out the inadequacy of
municipal laws in coping with the complexities of disputes arising from international
commerce. They maintain that municipal laws are inadequate for the needs of
international trade because the legislative mechanism of states has made slow progress
in amending laws to cope with the fast development of international commerce. Even if a
state is capable of catching up with the fast changes of commerce, how far and how fast
can a society afford to change its domestic legislation in order to cope with the rapidly
expanding development of economic activity? (65)
Recognizing that updating commercial law and developing unified international rules
can be beneficial to the development of international commercial arbitration, some
jurists and merchants believe that it would be desirable to develop a set of universal
rules to be applied to all international commercial activities world-wide. In response to
these demands, the new lex mercatoria has been invoked and has attracted a great deal
of attention because it is regarded as a device which meets the real needs of
international commercial communities. This friendly attitude is shared among
academics. For instance, Professor Lando has stated that:
An arbitrator applying the lex mercatoria will act as an inventor more often
than one who applies national law. Faced with the restricted legal material
which the law merchant offers, he must often seek guidance elsewhere. His
main source is the various legal systems. Applying the lex mercatoria,
arbitrators may take advantage of their freedom to select the better rule of
law which courts sometimes miss. (66)

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 In addition, the new lex mercatoria has also been applied by arbitrators and upheld in
national courts. For instance, the lex mercatoria was applied in a dispute submitted to
the ICC arising from construction contracts in Saudi Arabia. (67) The contract did not
contain a choice of law clause and the parties could not agree on a body of stubstantive
law to apply to the case. Convinced that the contracts had an international character, the
arbitrators believed that the parties did not wish to subject their contracts to Saudi law.
(68) Therefore, the Tribunal gave precedence to the relevant trade usage, i.e., the new lex
mercatoria, which supplemented the terms of the contracts between the parties. (69)
P 469
The holding by an English court in Deutsche-und Tiefbohrgesellshaft v. Ras Al Khaimah
National Oil Co. and Shell International Petroleum Co. Ltd. (DST v. Rakoil) (70) also
supports the new lex mercatoria. In the absence of a choice of law by the parties, the
arbitrators decided to apply “internationally accepted principles of law governing
contractual relations” and made the final award in favour of the plaintiffs. The losing
party argued before the Court of Appeal that enforcement of the award would run against
English public policy because the award was not decided on the basis of any national
law. The Court of Appeal dismissed the defendants' appeal concerning the proper law
and upheld the arbitrators' choice of “internationally accepted principles of law” to
govern contractual relations between the parties, since the omission of a choice of law
clause from the parties' arbitration agreement did not nullify the parties' clear intention
to create legally enforceable rights and obligations. Accordingly, the omission did not
affect the validity of the award under Swiss law which was the procedural law of the
arbitration and the law governing the arbitration agreement; moreover, the enforcement
of the award would not be contrary to English public policy. With regard to public policy,
Sir John Donaldson M.R. suggested that as long as the parties intended to create legally
enforceable rights and obligations, a request for enforcement of an arbitral award made
on the basis of a system of law which was not that of England or of any other state or was
a serious modification of such a law would be granted: (71)
Considerations of public policy can never be exhaustively defined, but they
should be approached with extreme caution. … It has to be shown that there is
some element of illegality or that the enforcement of the award would be
clearly injurious to the public good or, possibly, that enforcement would be
wholly offensive to the ordinary reasonable and fully informed member of the
public on whose behalf the powers of the state are exercised… Asking myself
these questions, I am left in no doubt that the parties intended to create
legally enforceable rights and liabilities and that the enforcement of the
award would not be contrary to public policy. (72)
Sir John Donaldson continued with a discussion on the certainty of the choice of law
clause:
By choosing to arbitrate under the Rules of the ICC and, in particular, art. 13.3,
the parties have left the proper law to be decided by the arbitrators and have
not in terms confined the choice to national systems of law. I can see no basis
for concluding that the arbitrators’ choice of proper law, a common
denominator of principles underlying the laws of the various nations governing
contractual relations, is outside the scope of the choice which the parties left
to the arbitrators. (73)
This decision was confirmed in the Channel Tunnel Case, (74) where Lord Mustill, who was
regarded as the leading representative of the non-believers in the new lex mercatoria,
expressed a more understanding view about its application. According to Lord Mustill,
considering the special circumstances and needs of the Channel Tunnel venture, it might
P 470 be right for the parties to choose an indeterminate “law” to govern their substantive
rights. Also, he concluded that no matter whether this choice of law was right or wrong, it
was the choice which the parties had made. (75)
This path of development by the lex mercatoria resembles the development of e-
commerce and its needs for more suitable rules of law to govern the online contractual
relationship. Because of the principle of party autonomy underlying all arbitration, the
parties can decide to have their online contracts governed either by a specific national
law or by other rules of law (e.g., the new lex mercatoria) catering to the fast-moving trade
activities existing in both real and virtual worlds.

VII The Awards

One of the qualities of arbitration that makes it the most popular ADR method in e-
commerce is the finality and enforceability of the arbitral award due to the strong
enforcement network in the New York Convention, embodied in Article I. In realworld
arbitration, as long as an arbitral award fulfills the procedural requirements listed in
Article V of the New York Convention and is issued within the territory of a country party
to the Convention, the winning party can be almost certain that the award will be
recognized and enforced.
In general, international arbitration awards are easier to enforce in foreign courts than

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 are foreign court judgments. (76) In online arbitration, voluntarily fulfillment of the
arbitral award by the losing party is the most likely outcome. This is because cyberspace
connects its residents by interest and profits. The residents of this virtual “interest-based
world” (77) are not forced to participate in activities there, but are motivated by a strong
desire to make money by means of new communications technology. Therefore, voluntary
compliance with the arbitration award is likely as “there is no pressing need for legal
accountability when the parties share a strong set of legally acceptable values and seek
to use arbitration as a means of preserving and enhancing their relationship”. (78)
In cases where the online arbitrators award specific performance by ordering the
retraction of certain speech or advertisements on the Internet, the winning party may
find it easy to exercise commercial pressure on the losing party. For instance, one can
prevent the losing party from advertising on certain Internet web pages, or name and
shame them on a black-list, which can be spread very easily across the Internet.
However, the winning party cannot follow such a route if the award is in the form of
monetary compensation. In this case, the winning party will have to enforce the award
P 471 through a national court. Consequently, online arbitration will come into contact with
the territory-based arbitration framework and every step taken in the online arbitration
will be examined by the relevant national courts. The territorial principle may become
an obstacle to enforcement of the online arbitration award, especially considering Article
I of the New York Convention. Unlike real world arbitration, which has clear geographical
definitions, online arbitration has no geographical boundary. For instance, considering
the scenario mentioned at the beginning of this article, a national of Hungary could
accept an appointment as arbitrator while he was physically living in Budapest, but
could later decide the case and render his award with the help of the Internet while he
was on holiday in Cambridge. In terms of enforcement of the award, the question
inevitably arises: where was the online arbitral award made? Is it in Hungary where the
arbitrator accepted his appointment, in Cambridge where the award was physically
issued, or, in the case of institutional arbitration, is it the place where the arbitration
institution has its headquarters? Suppose the arbitrator completed a few online
arbitrations over a period of several days on an around-the-world cruise: where were
these awards made? Does this mean that the awards are floating in the virtual world and,
as a result, the winning parties will have difficulty in invoking Article I of the New York
Convention?
Deciding on the location of the award is easy if the parties have specified the juridical
seat of the arbitration or the arbitrators have exercised their power to decide the place
of arbitration. Indeed, both the New York Convention and the UNCITRAL Model Law on
Arbitration provide that an award is deemed to be made at the seat of arbitration
regardless of where the hearings were held, or where the award was signed and delivered
by the tribunal. (79) However, difficulties will arise when the importance of the place of
arbitration is overlooked by the parties or the arbitrators, or both. To work around this
issue, one has to search for answers in either the existing arbitration framework by fitting
online arbitration into the traditional concept of “juridical seat” or exploring the
possibility of invoking the delocalization theory.
If the arbitrators' decision in an online arbitration requires a majority vote, two further
issues should be considered. (80) Under these circumstances, one has to question the
decision-making process and the timing of the award. In the writers' opinion, the online
award should not be regarded as made at the place where the last arbitrator cast his
vote, but should be the place where the award was written and issued. The same
principle will apply to the case where the presiding arbitrator has the deciding vote but
the award is issued by his colleague sitting on the panel. (81) If the award is issued by
electronic means, domestic laws governing e-commerce will have a decisive factor in
terms of the validity of the award. (82)
P 472
The other point which needs to be considered when considering the way the award is
issued, is how the “in writing” requirement can be reconciled with online arbitration. Both
Article 31 of the UNCITRAL Model Law on Arbitration and Article 32(2) of the UNCITRAL
Arbitration Rules state that “the award shall be made in writing” (emphasis added);
Article IV of the New York Convention stipulates that the party seeking recognition and
enforcement of the award shall, at the time of the application, supply duly authenticated
originals or duly certified copies of the award and of the arbitration agreement. However,
Article IV should be read together with Article III of the Convention. Under Article III, an
award has to be made in accordance with the “rules of procedure of the territory where
the award is relied upon”; in other words, if the country where the award was made
accepts an electronic form of writing there should be no barrier to enforcement of the
online award. The same reasoning can also be applied to the requirement of a “duly
authenticated original award or a duly certified copy” which presumes that the award is
issued in writing and authenticated by the court of the country where the award was
made. An award made in electronic form should be regarded as an “authentic copy in
writing”, as long as the applicable law recognizes the concept of electronic writing. (83)
Consequently, the validity of the online award should be recognized by the enforcing
state.

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 VIII Concluding Remarks
As a new form of ADR, online arbitration has encountered unique issues in the application
of traditional principles of international commercial arbitration. This article has focused
on relevant issues in online arbitration, such as whether traditional principles of
arbitration can provide satisfactory answers to this electronic means of dispute
resolution, and observed potential obstacles lying in the path of online arbitration: these
include defining the place of arbitration and the place where the award is made,
determining choice of procedural law and substantive law, and the writing requirements
for the arbitration agreement and the award. Fortunately, provided that the relevant
national law recognizes the legal validity of cyber activities, most issues can be resolved
by using traditional principles and concepts applied in international commercial
arbitration.
In order to eliminate territorial requirements imposed by international conventions and
relevant domestic law, one must redefine the seat of arbitration by borrowing the
concept of juridical seat used in traditional arbitration. This is especially the case in
online arbitration, where the seat of arbitration is largely determined by the parties'
agreement or the arbitrator's choice. Once this obstacle is overcome, the award's
location may also be determined.
At this stage, the enforceability of online arbitration wholly depends on the traditional
principles applied in the existing arbitration framework, which have been incorporated
P 473 into domestic national laws in all jurisdictions. As a result, parties and arbitrators
involved in online arbitration must pay attention to the legality of arbitration
agreements, arbitration procedures, choice of law, place of arbitration, and forms of
awards. In order to develop a truly borderless system for online arbitration, it may be
necessary to re-invent arbitration on the basis of the delocalization theory. In this way,
online arbitration may one day offer a real alternative to traditional arbitration in the
cyber world.

P 473

References
*) Lecturer in Law, University of Essex.
**) Lawyer, Litigation, Mediation and Arbitration WorldWide Services, Jordan; Legal
Consultant, the Housing Bank for Trade & Finance, Jordan.
1) R.C. Bordone, Electronic Online Dispute Resolution: A Systems Approach: Potential,
Problems, and a Proposal, 3 Harv. Negot. L. Rev. 175, 178 (1998). See also L.J. Gibbons,
Rusticum Judicium? Private Courts Enforcing Private Law and Public Rights:
Regulating Virtual Arbitration in Cyberspace (The New Yorker Collection, New York
1993).
2) See J.H. Sommer, Against Cyberlaw, 15 Berkeley Tech. L.J. 1145 (2000).
3) Bordone, supra note 1, at 183. Although geographic entities have legal control over
cyberspace citizens, they “will not have the ‘functional’ control over them.
Territorially based control over cyberspace is logistically impossible to actualize.”
4) Id. at 184.
5) H.H. Perritt Jr, Dispute Resolution in Cyberspace: Demand for New Forms of ADR, 15
Ohio St. J. on Disp. Resol. 675 (2000).
6) American Bar Association Task Force on E-commerce & Alternative Dispute
Resolution, Draft Preliminary Report & Concept Paper (2001), available at
<www.law.washington.edu/ABA-eADR>.
7) F.A. Cona, Focus on Cyberlaw: Application of Online Systems in Alternative Dispute
Resolution Pages, 45 Buff. L. Rev. 975, 991 (1997). See also H.H. Perritt, Jr., Electronic
Dispute Resolutions, presented at NCAIR Conference (May 22, 1996).
8) That is, exchanging letters electronically. The Internet has rapidly developed from a
simple network of government, military, and research computer networks to a global
medium for the exchange of ideas and information and contract-making medium.
Cona, supra note 7, at 975. The validity of online contracts can be uncertain and is still
subject to debate. M. Chissick & G. Veysey, The Perils of Online Contracting, 6
Computer & Telecomm. L. Rev. 121 (No. 5, 2000).
9) For more information about the mechanics of Internet communication and its
privacy, see L.J. Gibbons, Private Law, Public “Justice” Another Look at Privacy,
Arbitration, and Global E-Commerce, 15 Ohio St. J. on Disp. Resol. 769 (2000).
10) This is not the only way to conduct online arbitration. For more information, see
<https://secure.cnchost.com/arbitrationsolutions.com/sign_up.html>.
11) Different institutions employ different methods. See, e.g., Virtual Law Firm, at
<www.dnai.com/tulf/index.html>.
12) See <www.eresolution.ca/services/general/arbitration.html>.
13) See <www.intellicourt.com/procedures.html#ExpressPlan>.
14) This point was discussed during the ADR Cyber-Week Convention, 19 February 2001.
See <webboard.mediate.com/~cyberweek/guests>.
15) Martin Odams de Zylva, Effective Means of Resolving Distance Selling Disputes, 67
Arbitration 230–39 (August 2001).

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 16) Id.
17) Klaus Peter Berger, Lex Mercatoria Online: The CENTRAL Transnational Law Database at
www.tldb.de, 18 Arb. Int. 83–94 (No.1, 2002).
18) Cyber Promotions, Inc v. America Online, Inc., 948 F. Supp. 436, 443 (E.D. Pa. 1996);
Lloyds Corp. v. Tanner, 407 U.S. 551 (1972).
19) U.N. Convention on the Recognition and Enforcement of Foreign Arbitral Awards, New
York, June 10, 1958, 330 U.N.T.S. 3.
20) UNCITRAL Model Law on International Commercial Arbitration, arts 7, 34 and 36,
Report of the U.N. Commission on International Trade Law on the Work of its
Eighteenth Session, 40 U.N. GAOR, Supp. No. 17, U.N. Doc. A/40/17, Ann. 1 (1985),
reprinted in 24 I.L.M. 1302 (1985).
21) Uniform Rules of Conduct for Interchange of Trade Data by Teletransmission (UNCID
Rules), Introductory Note, U.N. Doe Trade/ WP.4/R.483, at 1 (1987).
22) UNCITRAL Model Law on Electronic Commerce, G.A. Res. 51/162, 51 U.N. GAOR, Supp.
No. 49, Ann., at 336, U.N. Doc. A/51/49 (Vol. I) (16 Dec. 1996, as amended 1998),
available at <www.uncitral.org/english/texts/electcom/ml-ec.htm>.
23) Parliament and Council Directive 2000/31/EC, 2000 O.J. (L 178) 1–16.
24) Electronic Communications Act 2000, c. 7 (Eng.).
25) Copyright, Designs and Patents Act 1988, c. 48 (Eng.).
26) Derby & Co. v. Weldon (No. 9) [1991] 1 W.L.R. 652, 654.
27) Parliament and Council Directive 1999/93/EC, 2000 O.J. (L 013) 12–20.
28) Id., art. 1.
29) Id., art. 2(1).
30) Id., art. 5(2).
31) Id., art. 3(1).
32) Goodman v. J. Eban Ltd [1954] 1 Q.B. 550, 557.
33) Re a Debtor (No. 2021 of 1995) [1996] 2 All E.R. 345 (holding that a faxed copy of a
signature satisfied a statutory signature requirement).
34) Id. at 351.
35) Supra note 1, at 192.
36) Legal Implications of Automatic Data Processing: Report of the Secretary-General
(April 7, 1986) (A/CN.9/279), [1986] UNCITRAL Y.B. 3, para. I.A(5), U.N. Doc.
A/CN.9/SER.A/1986, U.N. Sales No. E.88.V.4.
37) Id. at 12; see also Legal Value of Computer Records: Report of the Secretary-General
(Feb. 21, 1985) (A/CN.9/265), [1985] 18 UNCITRAL Y.B., U.N. Doc. A/CN.9/SER.A/1985,
U.N. Sales No. E.87.V.4.
38) UNCID Rules, art. 10, U.N. Doc. Trade/WP.4/R.483, Ann. (1987), ICC Publication No. 452,
1988. The UNCID Rules were prepared by a special joint committee of the
International Chamber of Commerce (ICC) in which the United Nations Economic
Commission for Europe (ECE), the Customs Co-operation Council (CCC), the UNCTAD
Special Programme on Trade Facilitation (FALPRO), the Organization for Economic
Co-operation and Development (OECD), the International Organization for
Standardization (ISO), the Commission of the EEC, the European Insurance
Committee, the Organization for Data Exchange via Teletransmission in Europe
(ODETTE) and the Secretariat of the United Nations Commission on International
Trade Law (UNCITRAL) participated.
39) F.A. Mann, Lex Facit Arbitrum, in Liber Amicorum for Martin Domke 157, 160 (Nijhoff
1967).
40) F.A. Mann, State Contracts and International Arbitration, 42 Brit.Y.B. Int’l. L. 1, 6 (1967).
41) See supra note 7.
42) Increasingly, judicial and formal administrative agency proceedings allow witnesses
to testify via video-conferences or video-recording. See supra note 1.
43) Neth. Civ. Code, arts 1020–1076 (Neth.).
44) Delocalizing the arbitral procedures refers to removing the supervisory authority of
the lex fori and the local courts where the arbitration is held. As far as a delocalized
arbitral award is concerned, it means removing the power of the courts at the place
of arbitration to make an internationally effective declaration of the award's nullity.
Accordingly, the delocalization theory can be applied at two stages of the arbitration
procedures. One is delocalizing the arbitral procedures from the controls of the lex
fori. The other one is delocalizing arbitral awards. See Jan Paulsson, The Extent of
Independence of International Arbitration from the Law of the Situs, in Contemporary
Problems in International Arbitration 141 (J. Lew ed., Centre for Commercial Law
Studies, London, 1986).
45) W.W. Park, National Law and Commercial Justice: Safeguarding Procedural Integrity in
International Arbitration, 63 Tul. L.R. 647, 667 (1989).
46) Jan Paulsson, Arbitration Unbound: Award Detached from the Law of Its Country of
Origin, 30 Int’l & Comp, L.Q. 358, 362 (1981).
47) Jan Paulsson, Delocalisation of International Commercial Arbitration: When and Why It
Matters, 32 Int'l & Comp. L.Q. 53, 54, 57 (1983).
48) New York Convention, art. (1)(d), (e).
49) e.g., the procedures available through the International Chamber of Commerce, see
<www.iccwbo.org>, and the American Arbitration Association, see <www.adr.org>.
50) e.g., Virtual Magistrate, see <www.vmag.org/docs>.
51) See, e.g., Arbitration Act 1996, c. 23, § 34(1) (Eng.).

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 52) Alan Redfern & Martin Hunter, Law and Practice of International Commercial
Arbitration 6–75 (Sweet & Maxwell, London, 3d ed. 1999).
53) New York Convention, art. 5(1)(d).
54) See supra note 7.
55) Id. Even in traditional arbitration, face-to-face hearings may not be a necessity, as
was reported in Dalmia Dairy Industries Ltd. v. National Bank of Pakistan [1978] 2
Lloyd's Rep. 223, 269, where the court said “the dispute being essentially, and indeed
exclusively, of a legal nature, I have reached the conclusion that it was completely
unnecessary to collect testimonies and hear witnesses as the defendant requested.”
56) Englnd is one example of this. See Bank Mellat v. Helliniki Techniki S.A. [1984] Q.B.
291.
57) Id. at 301. See also F.A. Mann, supra note 39, at 167.
58) T. Hardy, The Proper Legal Regime for Cyberspace, 55 U. Pitt. L. Rev. 993, 994 (1994).
59) R. Johnson & D. Post, Law and Borders: The Rise of Law in Cyberspace, 48 Stan. L. Rev.
1367 (1996).
60) Id. Cf. J.H. Sommer, supra note 2, and T. Hardy, supra note 58 (“Customers are
developing in cyberspace as they might in any community, and rapid growth in
computer communications suggests that there may be a great many such customs
before long. Many of these customs conflict with ‘real’ space customs.”).
61) C.M. Schmitthoff, The Unification of the Law of International Trade, in Schmitthoff's
Selected Essays on International Trade Law 170 (1988).
62) According to Prof. Ole Lando, infra note 66, arbitrators from Europe more frequently
apply the lex mercatoria to disputes arising from international contracts than do
arbitrators from other countries, especially disputes arising from contracts between
a government or government enterprise and a private company. Because of the fear
of bias, a private party in dispute with a foreign state will not wish to have the
dispute governed by the laws of the foreign state. Aside from state contracts, the lex
mercatoria is also very popular among private enterprises engaged in international
trade. The application of the lex mercatoria as the proper law to govern an
international contract has been generally accepted in Austria and France.
63) K.C. Randall & J.E. Norris, A New Paradigm for International Business Transactions, 71
Wash. U.L.Q. 599, 607–8 (1993).
64) Allan Redfern & Martin Hunter, Law and Practice of International Commercial
Arbitration 117 (1991).
65) L. Goldstajn, The New Law Merchant Reconsidered, in Commercial Law in a Changing
Economic Climate 175 (C.M. Schmitthoff ed., 1981).
66) O. Lando, The Lex Mercatoria in International Commercial Arbitration, 34 Int'l & Comp.
L.Q. 747(1985).
67) ICC Case No. 4840 (1986), reprinted in Collection of ICC Arbitral Awards 1986–1990 at
465–76.
68) Id. at 471.
69) Id. at 472.
70) [1987] 3 W.L.R. 1023.
71) Id. at 1035–36.
72) Id. at 1035.
73) Id.
74) Channel Tunnel Group v. Balfour Beatty Ltd. [1993] A.C. 334; [1993] 2 W.L.R. 262.
75) Id. at 363.
76) Supra note 1, at 185.
77) Supra note 1, at 188.
78) M. E. Budnitz, Arbitration of Disputes Between Consumers and Financial Institutions: A
Serious Threat to Consumer Protection, 15 Ohio St. J. on Disp. Resol. 267 (2000). Some
commentators say that relations between cyberians are different from those of more
traditional merchants because there is no sharing of legally-accepted (common)
values nor is there necessarily any pre-existing relationship to preserve. See supra
note 1.
79) UNCITRAL Model Law on Arbitration, art. 31(3) (an award “shall state its date and
place. The award shall be deemed to have been made at that place.”).
80) See UNCITRAL Arbitration Rules, art. 31, G.A. Res. 31/98, 31 U.N. GAOR, Supp. No. 17,
U.N. Doc. A/31/17 (1976), 15 I.L.M. 701 (1976).
81) See ICC Rules of Arbitration, art. 25(1), ICC Publication No. 581.1 (1998), 36 I.L.M. 1604
(1997) (if three arbitrators have been appointed, the award is given by the majority,
but if there is no majority, the chairman makes the award on his own).
82) In Hiscox v. Outhwaite [1991] 3 W.L.R 302, the court found that the award is a written
document; a document is made when and where it is perfected and an award is
perfected when it is signed, thus the place of signature was the relevant test in
determining where an award was made.
83) The first award of the Virtual Magistrate was “posted” via an e-mail to the disputants
on May 21, 1996. See <http://vmag.vcl.ip.org/doksys/96-0001>.

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