Originially from: World Arbitration and Mediation Review (WAMR)

UNCITRAL Arbitration Rules under Sniper
Fire Prove To Be Fire-Proof
By G. Herrmann and J. Sekolec. The authors are members of the UNCITRAL
Secretariat. The opinions presented here are their personal views.
In the February issue of WAMR, Robert Coulson, President of the American
Arbitration Association, launched an attack on the UNCITRAL Arbitration Rules
— thinly veiled by the title “The Practical Advantages of Administered
Arbitration.” A very similar article by the same author appeared in the AAA’s
house journal Arbitration Times (Winter 1992/93) unveiled as “A Critique of the
UNCITRAL Rules.”
In both places, the critic conveniently combined and thereby confounded two
matters that must be clearly separated: 1) the type of arbitration, namely ad hoc or
administered arbitration and; 2) the arbitration rules applied in the arbitration, i.e.,
the UNCITRAL Rules and their alleged shortcomings. Equating the UNCITRAL
Rules with ad hoc arbitration enabled the critic to blame on these Rules all the
disadvantages of ad hoc arbitration. The truth, however, is that such disadvantages
exist, to the extent they exist at all, in an ad hoc arbitration per se even if the
UNCITRAL Rules are not being used; and if the UNCITRAL Rules are being
used, any disadvantages tend to be reduced, if not eliminated.
Ad hoc v. Administered Arbitration
The major problem with ad hoc procedures, according to the critic, is that “they
are not self-enforcing” and that parties therefore may unnecessarily end up in
court. Creating the impression that this major flaw characterizes the UNCITRAL
Rules, the critic fails to see that these Rules are in fact self-enforcing, and that the
refusal of the respondent to arbitrate does not require the claimant to go to court
(thanks to provisions such as Articles 7 and 28). However, the criticism may be
justified with respect to ad hoc arbitration with other rules or without any rules.
It is a different question whether there is — or whether, as we usually
recommend, there should be — an administrative agency that can give a helping
hand. The existence of such an agency obviously (by definition) marks the
difference between administered arbitration and ad hoc arbitration, and parties are
well-advised to consider carefully the implications of that difference. In so doing,
they should not limit themselves, as the critic does by acting as an “administration
spokesman,” to looking only at potential advantages of administered arbitration.
Thus, they might realize that resort to a national court may often become
necessary in administered arbitration as well, and in some cases only in